Thread: Advice

Hi guys,

I know I haven't spent much time on here recently. But this is the only place I can think of to speak to people who might have been in a similar situation in the past?. I've been quite disappointed on something in the past few days. I'll get to what it is in a bit, but I wonder if anybody out has been in a similar situation like I do and what did you do or what can I do in situation like these?

Its my desire ever since I was at the university to have my own start-up and im constantly thinking about new idea. And very recently I noticed a problem and I came up with a solution to it and had been working on it for couple of months until last night when I found out that there's already patent which had been raised against this idea. This was a big disappointment and I felt like I had no where to go but the dead end.

Is this really a dead end? The patent was granted in US and Europe I saw the idea has been talked about and there was link in Europe patent website when I looked into it (but not sure if its been granted). But nowhere I see the idea has been but in places or being sold. Altho there's a patent against its but never been used.

Or is it worth trying to twist the idea which is already out there to slightly change and patent it? Is that an option? I don't know.

Im really not sure what to do. Any guidance or suggestions and advice would be much help.

Cheers!

If you can find a way to improve or change the invention, and can prove it to a patent attorney, and potentially a judge and jury, then you can avoid patent infringement, and even file your own patent(s).

O_o

Please, talk to a lawyer.

A good lawyer can help you discover similar patents which may have been invalidated or find parts of the patent process with known solutions.

Soma

Ok! So is it worth spending the time to continue researching and working on the idea or is it just abandon it, get the patent issues and then continue? This is what im trying to evaluate :/

I sometime wish i was rich :P to pursue this further with formal bodies. But that would cost money i suppose, perhaps in large amount.

Thanks very much for suggestions.

It is becoming very difficult to design against patents that are not being developed, defended, or have been apparently abandoned. A new breed of business, affectionately known as Patent Trolls, specializes in buying old patents wholesale and then take to court anyone adopting the patented design even if only remotely. This even includes taking to court designs improving of existing patents, which is perfectly lawful but can be argued against in court. These business source of income relies on either winning the case, or settling out of court because the costs for the plaintiff are ruinous.

Remember also that even if the patent seems abandoned, it may be salvaged later by patent trolls who will still be in their legal right to charge you for prior infringement. This, even if you were somehow able to patent your design. Older patents take precedence. A patent is really only lost when it is removed from the official list or when a jury decides in court it is no longer valid. The former rarely happens even after considerable requests from competing parties, while the latter requires court proceedings which may be expensive for someone trying to start their own business.

So yes, patents, at the onset of the 21st century have becomes exactly the opposite they were created for. They are inhibiting new ideas and slowing down progress and development. All thanks to laws that don't change for decades, despite the world where we live having changed dramatically.

So my personal advice for you is to thread carefully. All I say here should be confirmed or denied by your lawyer. It is important you talk to one. But I'm just giving you a general idea of what you are against. I deal with these issues on a somewhat regular basis as a part of my business. I never went to court over a patent problem. But this only because on the few instances where such a situation presented itself, I chose to cower my way out and adopt a different idea or design in order to avoid possible confrontation. To this day I still swallow hard and get irritated every time I think the day I gave up on an excellent air conditioning board design and programming an employee of mine once presented to me.

Originally Posted by Yarin

You don't give any specifics, so I'm just guessing here, but it's quite possible that the patent has been forgotten and/or if you violate it you'll never be noticed.

Violating a patent, simply because the owner doesn't care enough to enforce it is not a good idea. You can never know when they might notice that you're making money with their technology, or using enough of it yourself that they would be making significant money, had you licensed it from them, and start coming after you for what is legitimately and rightfully theirs.

Originally Posted by Yarin

You could create several companies, and simply license out the software/services that would violate the [s]monopoly grant[/s] patent to one of your other companies, to minimize your losses in the event you are caught.

Yes, let's advocate committing fraud. Great idea.

Originally Posted by Yarin

If this patent is on software, you might be also able to run it on the cloud, through a shell company registered in a country that doesn't respect the patent.

But if the service is consumed by an entity in a country that does respect the patent, you would still be in violation.

Originally Posted by Yarin

Alternatively, you may even attempt to find some prior art of the subject, and get the patent invalidated.

This is the only good advice you gave in your post.

Having been through the patent process several times myself, I'll give you the benefit of my experience.

1. Getting a patent invalidated is much harder than inventing something that doesn't violate it.
2. You're far better off finding ways to show how their patent doesn't apply to your invention.
3. The best course of action is to invent something that is a substantial improvement on their design.

Originally Posted by Yarin

Also, it's not fraud.

Fraud is defined as "wrongful or criminal deception intended to result in financial or personal gain." Creating a shell company to take the hit when you ultimately and inevitably get hit with a patent infringement lawsuit may still legally be fraud in some jurisdictions.

Originally Posted by MutantJohn

I mean, let's pretend that the Pirate Bay was legal in some made-up country. It wouldn't be TPB's fault if a US citizen torrented a bunch of stuff, would it?

I sense a hint of sarcasm.

Originally Posted by MutantJohn

Hmm... If you legally host your service in a country, I don't think it's a crime committed by you if people choose to use the service in a different country were it's illegal, right?

That is not the case here. If some country isn't a member of the PCT, Elkvis is not legally obliged to respect any of the patents in that country. But if he violates a PCT patent, he is violating the law even if he uses the device or software in a non PCT country.

This is also true of any patent filled in his home country, but which lacks the international status granted by a PCT filling. He will still infringe on that national patent even if uses it in Argentina.

Originally Posted by MutantJohn

Really? That's weird. I actually wasn't trying to be sarcastic O_o

The pirate bay has been the target of civil and criminal actions for its activities in file sharing and copyright infringement, most of which was done by US persons.