

Ask HN: How to deal with patents? - amjith

I got an idea for a product. Before I proceeded with any prototype, I found out that someone has already patented the idea. I don't know if the individual who patented it has started working on the idea. If I want to still pursue my idea, how should I proceed? Has anyone encountered this problem?
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bsaunder
I'd say go ahead and proceed with your idea (of course, I'm not a lawyer).
People with patents, don't care about you until you have money (confirmed this
with a patent troll I met recently at a convention). At that point you can
either work around the patent or negotiate a license agreement.

Also (and this is mentioned everywhere in these circles), what you actually
launch with may be entirely different than your idea right now anyway.

Don't worry about problems you don't have yet. Good to know about the up
coming problems, but focus on making progress, otherwise it's just mental
entertainment.

~~~
amjith
Should I wait to contact the patent holder until I am successful or just
contact him now and ask him if we can make a deal?

~~~
timr
That's a bit like going up to a police officer and asking him for advice on
the best way to rob someone without getting caught.

Remember: if a patent holder can show that you've _knowingly_ infringed on a
patent, it's much worse than the alternative. Keep your mouth shut until
you're absolutely _positive_ that you've got a problem. How do you know? You
talk to an attorney.

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michael_dorfman
Talk to a lawyer.

Generally speaking, the idea can't be patented, but the implementation can be.
Get a copy of the existing patent, and document how your implementation
diverges. Have your lawyer see what the potential exposure is.

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lincolnq
It's probably too late for you in this case, but in the future, it's probably
a good idea never to read patents. (not legal advice) That's the policy I keep
-- I don't follow links with 'patent' in the URL, because it's much worse for
you if you knowingly infringe.

For that matter, I don't even read paper publications out of places like
Microsoft Research because of patent-related issues. Take a look at this,
warning about an IBM publication: [http://on-ruby.blogspot.com/2008/02/ip-
police-line-do-not-cr...](http://on-ruby.blogspot.com/2008/02/ip-police-line-
do-not-cross.html)

------
noonespecial
Patents these days are so broad and so many that _whatever_ your idea is,
there will be a patent covering it or someone ready to claim that the one they
have covers it.

Make a good product, make money, then pay lawyers to sort it out for you. Its
all mostly pretend now anyway. Patents really have about as much to do with
ideas as Scientology has to do with science.

It also seems these days that the more a company blathers about patent-pending
this and proprietary that, the less actual innovation they've done.

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mooneater
Dont forget, triple damages if they can show you knew about their patent if
they sue.

~~~
micks56
Knowledge of an existing patent is only 1 factor of 9 when determining whether
to award treble damages. All 9 factors are:

1\. whether copying was deliberate

2\. whether upon notice infringer did good faith investigation (upon notice,
did you see if you really were infringing)

3\. infringer's behavior as a party to the litigation (did your lawyers place
nice in pleadings and motions)

4\. infringer's size and financial condition (big guy vs. little guy?)

5\. closeness of the case (if the case could go either way, no treble damages)

6\. duration of infringer's conduct

7\. remedial action by the infringer (when notified of infringement, did you
develop a non-infringing work around)

8\. infringer's motivation for harm

9\. whether infringer attempted to conceal misconduct

The court weighs all of these to determine whether to enforce treble damages.
They are not weighed equally, and you don't have to fail a certain number.

You have 2 ways you can go. First, you can just build the idea and see what
happens. Don't research whether you are infringing, and just take it as you
are working in the same area as someone else.

Or you can read the actual patent and see what is claimed. Engineer around
that, and around extensions of that patent that a person of ordinary skill in
the art would consider obvious.

------
agentbleu
[http://thenextweb.org/2008/05/29/the-innovation-problem-
no-o...](http://thenextweb.org/2008/05/29/the-innovation-problem-no-one-else-
cares/)

In this article I talk about how patent's are effectively nonsense for all but
a very few who know how to 'work' the law who also have the fat to do so.

