Ridiculous eCommerce patents - should I be worried?

[Arnoud Galactus Engelfriet]

Jan Wildeboer wrote:
> Arnoud Galactus Engelfriet schrieb:
> >If your program is distributed on the US market, you may be
> >in trouble.
> 
> Our program is free software, I have no way to control or restrict the 
> distribution.

Well, if you are not actively copying it to a U.S. website you should
be less exposed. However, anyone in the USA who downloads a copy of
your software can theoretically be sued.

Keep in mind, however, that the recipients of your software do not
have the right to redistribute the software if a patent holder
refuses to grant a royalty-free patent license for the software. See
section 7 of the GPL.

> >Even your US team members may be in trouble, as
> >"making a patented invention" is forbidden without permission.
> >However, the big question for them is whether you're worth the
> >effort. 
> 
> They are aiming at small companies - I checked the fifty companies that 
> they have sued - none of them uses our program. But it also seems that 
> they do not sue the program makers - only the users. Hrmpf.

A nasty trick, since the users will complain to the manufacturer and
force him to take out a license.

> >And I really really would like to stress that you should never
> >say "our program exactly infringes those patents". If you get sued,
> >and the opposing party finds this message in the public archive
> >or something, you've basically lost the trial.
> 
> I didn't say that. Read those patents. They cover every program that 
> uses text and images to sell a product. How can any eCommerce program 
> not meet those specs? :-(

I haven't reviewed the patents, but even if the claims at first sight
appear to be very broad, there can be many reasons why you still
wouldn't infringe. For example, a term can be given a limited
definition in the text. Or maybe the applicant said during
prosecution that it is essential that feature X must be done so and
so. In that case, even if feature X is given in the claim in a very
broad way, you only infringe if you do it exactly so and so. Claim
analysis is very difficult.

However, I was simply trying to say that you should never put in
writing "my product infringes on this patent", even if to you this is
the only possible conclusion. By your own admission you then know
that you need to obtain a license. Since you didn't obtain a license,
you are willfully infringing on somebody else's patent, and that may
cost you a lot of money. I always tell people in my company to say
"this patent looks very relevant to our product" and to leave the
detailed analysis of infringement to the patent attorneys.

Arnoud

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/