tens if not hundreds of companies are using it right now, but because they're not selling a product based on it there is no infringement.
You have to prove that, as long as you can't take apart some machine to prove infringement it is just another fishing expedition.
And even if you did, I'm not sure if that would constitute infringement (since you are not selling an apparatus containing the infringing item). Maybe one of the legal eagles here can fill that one in ?
True, but how would you prove it? A service just gives you the results, it does not tell you how it comes up with the results. Someone looking for infringement would need access to a similar base dataset and would have to run a lot of queries to develop enough proof to get any potential lawsuit off the ground. The only path I could see for such a lawsuit to develop would be one where a disgruntled employee provides enough evidence to get things rolling.
whoever modded me down for writing that gets a fair chance (and my points) to explain why a suspicion of patent infringement would allow a discovery procedure to establish whether or not that is true.
Quite simple: a plaintiff is not required to have complete proof of the defendant's wrongful acts prior to suing them in court. The burden would be too high, and most aggrieved plaintiffs would be unable to recover the harm caused them by the defendant.
Plaintiffs have the right to get "discovery" to prove their claims because the defendant is usually the only person/company with evidence of the defendant's wrongful acts.
A fishing expedition is where the plaintiff cannot articulate any particular type of evidence sought, or how such evidence would be useful/necessary to its case, or how such evidence would result in evidence it could actually use.
Example: P sues D for patent infringement, demands in discovery D's head researcher's notes. Not fishing.
Example 2: Same, except that P demands the CEO's call logs. Fishing, b/c not reasonably related to the patent infringement claim.
Example 3: Same as Ex 2, except that P alleges that the CEO knew about the patent b/c he spoke with a former employee of P before launching D's infringing product. NOT fishing, b/c now it's shown to be relevant.
How to tell the difference: If you can't articulate something relevant to your claims that the discovery could reveal, it's a fishing expedition.
If you have absolutely no proof but only a suspicion: 'your honour, their search results are so good, they must be infringing on pagerank' then it really isn't going to fly. You have to have more than just a suspicion before you can go in to discovery.
Knowing about a patent (because it has been published) is not enough.
Google could sue every other search engine right this second for infringement of pagerank and the judge would (upon a motion by the defendants lawyers) toss them right out without any kind of substantiation.
A declaration of a disgruntled employee, leaked source, a statement by a prominent member of the board of the competitor, all those would be grounds to let the trial proceed, but nothing would get you tossed out.
The operative word in your argument is 'complete'.
You will not get to read your opponents code on a hunch.
Sorry Jacques, you are wrong on that point. Been there, done that. Fishing expeditions are very easy to hide when it relates to highly technical patents.
No point in quoting what the law says, that's all theory. In practice, it happens.
Google could sue all the search engines out there. But there is no business reason for them to. But if it ever became critically important to them to kill a given competitor, patent infringment of the fishing kind would be high on their list of options.
I am not a lawyer but I play one on the Founder Institute :-)
You're right, none of those examples would be sufficient for a verdict. But we're not talking about verdicts here, we're talking about access to code, which occurs a long, long time before trial.
Have you ever conducted discovery before, let alone patent-litigation discovery? Discovery is about your suspicions. If you already had facts, you would not need discovery.
Judges are very lenient about discovery requests; the bar is very low -- reasonable suspicion is enough. BTW, you aren't actually required to justify your discovery requests unless the opposing party challenges them, and even then, it's their burden to show that your discovery request is unreasonable and irrelevant.
Code would be a request for production of documents (which actually refers to any physical evidence). Patents are exclusively federal jurisdiction, so the FRCP applies. In federal court, discovery is granted for anything that could lead to relevant evidence
All of the examples you mentioned are enough to get discovery, which occurs before trial. I've seen discovery granted based upon the affidavit of an employee who was fired for cause for stealing from the defendant company. I've seen discovery granted based on a *news article about a company.
The use of the patented device/method/whatever, whether or not it is sold, is the infringement. Unwitting infringers are not subject to very harsh penalties, if any (unlike ignorance of the law, ignorance of a patent is a mitigating factor, b/c people are not required to research the patent archives for everything they do or make). Knowing infringers can be hit with the hammer of holy justice.
Example: patents on custom protein structures.
Note that pure research, i.e., at universities, is usually considered a defense b/c it is in the public interest to encourage actual research, but it is a defense that must be proven in court. However, research with any sort of commercial motive will usually not avoid infringement liability.
The reason that the "hundreds" of companies can get away with it is b/c it isn't worth the cost to the patent holder to pursue them in court -- damages would be minimal, and the chance that a defendant could find something that would overturn the patent (i.e., prior art) is too high a risk if there are at least some companies willing to pay for a license.
You have to prove that, as long as you can't take apart some machine to prove infringement it is just another fishing expedition.
And even if you did, I'm not sure if that would constitute infringement (since you are not selling an apparatus containing the infringing item). Maybe one of the legal eagles here can fill that one in ?