Friday, 6 July 2012

Developers should Consider Before Getting Software Patents

In the last decade or thus, the difficulty of patents has painfully forced itself into the notice of the software development business. Before the SCO - Novell lawsuits, many folks were blind to the legal risks concerned in writing software. The legal wars between Apple, Microsoft, Google (and Oracle lately), and mobile device manufacturers have thrust these issues into the general public spotlight. As a result, several software developers that I discuss with have asked for my opinion or input with regards to patents.

First and foremost, i'm not a lawyer; I cannot speak to the legal liabilities and responsibilities that people have relating to patents. Additionally, no matter how one feels concerning patents, the straightforward truth is that they're currently the force of law. I even have an opinion concerning these software patent laws and their functions, however from a sensible viewpoint, my opinions don't seem to be attending to amendment existing laws or interpretations by the courts. Also, this discussion is from the point of view of the United States; I even have no clue how helpful this might be for folk in different countries.
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For the software developer or development firm (whomever owns the code that you just are developing), getting a patent has one in all 2 potential purposes:

    Offensive patents are utilized by firms to discourage others from using constant techniques. Suing folks for writing applications that's lined below your patent is an offensive use of the patent.
    Defensive patents are one thing that you just get, and whereas you'll create a case against some other person for using constant techniques, you are doing not do thus. you have got the patent so nobody else will get a patent on constant plan and then use it offensively against you.

The overwhelming majority of individuals I discuss with don't seem to be inquisitive about getting offensive patents. after they solicit from me, “should i buy a patent?” they're simply wanting to probably shield themselves against some other person with a patent and an aggressive lawyer. I will perceive this perspective fully.

For one factor, pursuing patent violations could be a huge distraction. Unless you're an enormous company with deep pockets, you are doing not have the time or cash to possess folks scouring each application out there to visualize if it violates your patents unless they're specific to a slender set of things that solely some competitors may use. Even then, it's expensive and time consuming to rent lawyers and find concerned in a very lawsuit involving highly technical details, with no guarantee that you just can win.

If a developer is inquisitive about offensive patents, I raise concerning their purpose. they typically need to stay competitors out of the area as a result of what they need to patent could be a crucial part of any application in their niche. In different words, they don’t need one thing generic like “using a mouse to pull and drop things on the screen” — they need industry- or niche-specific techniques to be lined. Then I raise the developer how they decide to verify what constitutes a violation value pursuing, obtain the lawyers, and affect having to pay such a lot time in court and such. That’s typically after they decide that perhaps suing everybody who appears to try and do what they are doing might not be worthwhile.

In my opinion, defensive patents create sense for many developers if they'll afford them and if they'll get one. Those are 2 huge “ifs” and most developers don’t even have the resources to see if what they're doing violates any patents, including understand if they'll get one. Patents are expensive too. I keep hearing figures between $10,000 and $20,000 from the folks i do know who have gone down that road. that's simply an excessive amount of cash for the folks I generally work with to cough up. I conjointly feel that within the majority of cases, patents for offensive functions are a lot of bother than they're worth; I conjointly believe that it's most likely easier and higher to thrive by doing an honest job with the programming than to undertake pushing everybody one else out through the courts.

Patent litigation is merely obtaining a lot of common. For an extended time, it had been one thing strictly reserved for “the huge boys” and even then they solely used it against direct competitors. for instance, when Amazon got a patent on the one-click purchase, everybody knew that it had been aimed toward Barnes & Noble, not each very little on-line store on the net. But now, some firms have determined to induce to a small degree a lot of freewheeling with the lawsuits. And to create matters a lot of worse, patent trolls are moving in, and absorbing each patent they'll realize and suing people left and right. it's turning into an increasingly dangerous world, that is why I feel that defensive patents are slowly shifting from “nice to have” to “necessity” in several cases.

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