Internetworkers: http://www.ibiblio.org/internetworkers/

[Corey Wilson <corey_wilson AT earthlink.net>]

James Dasher wrote:

> I'd be interested in hearing how open source apps especially provide 
> grounds for techniques and methods in the public domain.  E.g., if 
> someone had open-sourced a "one-click shopping" technique, would 
> Amazon.com have been able to drive Barnes & Noble off the Web?
If the open-source application had existed in the public domain for a 
period of time before the patent application was filed (usually one 
year), it would invalidate the one-click shopping patent.  In that case, 
Amazon would have had no ownership of the technology.  As for how open 
source licensing, e.g., GPL, etc., affects the classification of the 
software as in or out of the public domain, I am not sure.

Jim Allman wrote:

   Does the emerging IP landscape (especially the stockpiling of patent
   portfolios by BigCos) spell trouble for independent software
   developers? I'm not just thinking about open-source projects, but
   also niche commercial apps.

If you are business owner, large or small, having IP is a good thing.  
The startup company is an extreme example: in today's market, VCs won't 
typically invest in a company without some proof of the company's 
potential for generation of profits.  Without IP, most software 
companies aren't worth more than the sum of their workstations, desk 
chairs, and pool tables.  In this case, IP can actually protect the 
innovation work of a deserving company from being stolen by a BigCo.

On the flip side, BigCos have an advantage.  IP is expensive to obtain.  
It is even more expensive to enforce.  Patent infringement lawsuits cost 
millions of dollars and are essentially a crap shoot if they get to 
trial.  BigCos can better afford to accumulate a lot of IP and assert it 
aggressively against companies who can't afford the expense of litigation. 

The reality is that the vast majority of IP matters are settled out of 
court and never hit the press.  The companies involved typically settle 
for some type of cross-license agreement.  The little company trudges on 
and the BigCo gets a cut.  Only in the extreme cases, when the defendant 
strongly feels that he didn't infringe and/or the patent is invalid, and 
they can afford a good attorney, will the case ever get to trial. 

   Are y'all worried about this? Is anyone taking steps to deal with it
   (liability insurance, patenting your own stuff, etc)? Or are you
   depending on the plankton defense (they'll never both me, I'm nobody)?

A company will realistically enforce IP only if there is money to be 
made or lost, i.e., to mitigate the threat of competition or to generate 
recurring revenue.  IP is a substantial investment, and it doesn't make 
sense to get it or enforce it if there is not money at stake.  In that 
sense, the plankton defense is an effective one (if you intend to remain 
plankton and not grow into, say, kelp).

The important thing for a software company is due diligence.  You need 
to get your ducks in a row /before/ you begin development.  Look for 
patents that may cover your invention.  More importantly, look for 
corporations that your product may threaten.  Scour their patent 
portfolios for possible problems.  If you think your product is going to 
hit big, hire an attorney to help you spot potential mines.  Document 
your findings.  If you find a patent that is a threat, make sure you 
code your application in a manner that does not infringe. 

The important thing is to not /willfully/ infringe.  Infringement is bad 
enough - you can be forced to stop selling your product and hand over 
your profits to the IP holder.  If the IP holder proves that you 
willfully infringed you are liable for three times that amount.  
Document the steps you took to ensure non infringement.  Set up a clean 
room if you have to.  Also search for prior art.  This can be enormous 
leverage if a company engages you in an IP audit.

I've been involved as a consultant in 15 patent lawsuits and I cannot 
stress the value of documentation enough.  Document everything you do 
right.  Never write anything down without thinking about how it could 
hurt you down the line.