Even when you build something that does not implement the "patented
invention" the Legal System is structured such that you have a hard time
avoiding trebble damages if you've actually read the patent being
"enforced".
It's bad enough that defending against a patent claim starts
at a $2 million defense fund without automatically trippling that to $6
million.
Of course, there are many other reasons for the decision not
limited to the above or the following additional examples:
A: We keep being
told by the Patent Legal profession that we - the engineers - are not qualified
to understand the patents!
B: The patents we do come accross in the
news that we dare to glance at (mostly software related for myself) we see have
issues with proper disclosure such that the requirement for disclosure is not
being met and we are left to devise our own solutions anyway!
C: The
patents reviewed tend to be very broadly worded such that they apply to the
conceptual idea of providing a general solution to a general problem - they
don't describe a specific implementation!
D: The patents commonly
describe something that is already well known in the industry, been in use for
quite a long time - and was granted by the USPTO anyways.
E: Once the
USPTO stamps their approval on a patent no matter the numerous reasons it should
not have been granted - the patent is automatically presumed by Law to have been
properly vetted and it's up to the defense to prove it should never have been
granted.
Just to start to show sufficient evidence for any of the problems,
I point to the IP Innovation v. Red Hat and Novell, 705 F.Supp.2d 687 Lawsuit
which highlights a large number of the issues presented.
Imagine: a
finished product sold in 1985 (not developed then, but sold then) infringes a
patent filed for in 1987 and was issued in 1991.
The fact that the USPTO
is granting patents that products in the market place "infringe" prior to the
patent even being filed should make it crystal clear that patents are being used
to take knowledge from the public! Of course, that's not the only way software
patents take knowledge from the public, just one example.
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