Software patents?

[Nekiruhs]

This has been on my brain for a while now. If i write a program with no intent at the start to infringe a software patent but end up doing so what would happen. Say I release it on Sourceforge or Launchpad. Would there be a Cease & Desist order on my doorstep the moment the patent holder found out? A court order? Would the owner even be able to sue me at all, assuming this is not for profit? I've got some projects that are going no where fast because I'm kind of afraid to publish them. Is this a logical fear at all? Or is it just a false phobia?

[wolfbone]

This has been on my brain for a while now. If i write a program with no intent at the start to infringe a software patent but end up doing so what would happen. Say I release it on Sourceforge or Launchpad. Would there be a Cease & Desist order on my doorstep the moment the patent holder found out? A court order? Would the owner even be able to sue me at all, assuming this is not for profit? I've got some projects that are going no where fast because I'm kind of afraid to publish them. Is this a logical fear at all? Or is it just a false phobia?

Whether your software is for profit or not is irrelevant but you are unlikely to attract the attention of patent holders. It does happen but if people didn't publish FOSS that infringes software patents, there wouldn't be any at all.

[Modred]

I've got some projects that are going no where fast because I'm kind of afraid to publish them. Is this a logical fear at all? Or is it just a false phobia?

I wouldn't let the fear of patent lawsuits prevent you from releasing your projects, unless you knowingly violated a patent. If your software were to gain enough prominence that a patent holder, or more likely a patent holder's lawyer, were to notice, then there's a chance of litigation, but it really depends on the patent holder.

They could let you use it without any problem, or negotiate a licensing fee, or be completely hostile. The worst that can happen is you have to withdraw your product after releasing it. I highly doubt anyone would pursue legal action if you willingly discontinued your projects and stopped "violating" their patent "rights." Of course, if something like that happens and you have a solid base of users, then when you explain to your users why you can no longer make the program we hopefully get a number of recruits to the anti-patent camp.

[samjh]

Don't worry too much.

Generally a patent will only be enforced if you are causing loss of revenue for the holder of the patent, and if that patent is enforceable in your country.

The usual flow of legal action varies between jurisdictions.

Generally you will first get a letter from the legal representatives of the patent-holder asking you to discontinue the project or replace the offending portions of your project with something that won't infringe on their patent.

If you do not respond positively to their request, then the matter may escalate to an application to the courts for an order to that same effect. You may contest the application.

If they manage to obtain such an order, you would be wise to follow it, otherwise you may be prosecuted for contempt of court (in serious cases) or else the patent-holders will bring you back to court to commence litigation proper. If they fail in obtaining such as an order, then they may not enforce the patent at all (most likely), or else pursue further legal action anyway (unlikely). Depending on how strong your case is (and availability of legal funds), you might want to go for negotiation and settle it outside of the courtroom. Usually these settlements involve a licensing contract.

As I said, there is great variety in the way court cases are handled. You would be best served by contacting a solicitor or seek advice from a public advisory service if they are available.

[pmasiar]

It depends on the country. USA has the most ridiculous laws. See JMRI project (http://lwn.net/Articles/181261/). For a for-profit company, it is relatively easy to destroy livelihood of a hobby developer.

Groklaw is the expert website to discuss this problem, advice here was rather misleading:

- even if you break patent unwillingly, you still could be sued. If you break willingly, it tripples the damages, so it is safer **not** to know the relevant patents. Doesn't make senese, right?
- Company may decide not to pursue action, because they cannot recover cost of litigation - but as you see in link above, it does not take much to bankrupt FOSS developer. It is hard to litigate if it can cost you 1 mil USD - so you just settle, if they let you, even if they are wrong.
- withdrawing your code might not be enough.

Software patents in USA is unmitigated disaster, completely off the rails and tragedy is bound to happen. IMHO, IANAL.

But free software community is aware of the problem and tries to protect the developers. Many companies claimed to contersue and donated good patents for the cause. See http://en.wikipedia.org/wiki/Software_patents