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We're in the process of designing a web application and discovered a patent that lays claim to many basic web technologies that we are planning to use (like passing simulation data from a server to a client).

We're rather disheartened to read over this patent because the claims are so broad.

We do know that the company that holds this patent is the only player in its market space and has attempted to file lawsuits against anyone developing similar product.

How should we proceed with the design of our web application - should we hire a lawyer to give us a clearance opinion that maps out our application against the patent in question?

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3 Answers

up vote 2 down vote

  1. Make sure you understand that a patent only covers the claims, not the entire description of the invention. That's what Joel was alluding to in his answer.

  2. A clearance opinion is worthless (except for the lawyer who writes it, that's a nice sum of money for the law firm). It won't prevent your competitor from suing you. It's only barely useful when a not very sophisticated investor wants to feel safer. Frankly, save your money.

What worries me in your story is the fact that the competitor has been very aggressive on the legal front. That's major bad news. I assume you don't have the resources to fight any kind of law suit, correct?

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Thanks for your comments. We've had one lawyer tell us that this patent has seven independent claims. – neo Jun 18 '11 at 4:04
You are correct, we don't have the funds to fight this in court and that makes our decision to pursue this project quite the dilemma. Even if we are sure that our approach to the problem does not conflict any of their claims, they can still sue us correct? What type of fees are we talking about if this happens? – neo Jun 18 '11 at 4:05
The cost of a serious patent fight? Start around $100K, go up to $1M for even minor cases. I recommend instead to try really hard to not annoy the competitor: don't take their customers, don't compete with them. Worst case, your company goes bankrupt (not your personally). So take the risk, and try to limit it as much as you can. And a legal opinion is not the way to do so. – Alain Raynaud Jun 18 '11 at 15:37
up vote 0 down vote

Don't take this personally but it doesn't sound like you're a patent lawyer. I am not a lawyer but I do know that there is an art to reading patents and when non-patent lawyers try to read them, they often misunderstand what is protected and under what conditions.

By all means if the technology covered is fundamental to your business and there is a risk of litigation, consult a lawyer.

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Second this. Patents often don't cover what you think they do. Unfortunately, the same goes for patent owners who sometimes think their patents cover much more than they do... – user6603 Jun 17 '11 at 2:23
You're correct, I'm not a lawyer. We did have an IP attorney read over this patent yesterday and he said there are seven independent claims that each need independent reviews. – neo Jun 18 '11 at 4:08
Just remember that the ONLY thing that is covered is the claims. The rest of the patent can be interesting reading, but unless it is a claim, it isn't covered. And yes, if a patent has seven INDEPENDENT claims (that is, claims that don't start with something like "A method of claim 1 in which ..."), each will require independent review. As always, consult competent legal counsel. I'm not a lawyer and this isn't legal advice. And I'll second the statement that reading patents is an art. I've read about 100 applications, 50 or 60 of which were my own. They can be very confusing at best. – Julie in Austin Sep 16 '12 at 4:55
up vote -1 down vote

Register your company at some location which does not recognize those patents. Obviously it would not be the US. Also avoid having any subsidiary in the US.

It's becoming ridiculous already. An overwhelming portion of the incoming questions are concerned with patents. Looks like an epidemic.

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That is an interesting approach to the problem. We're currently registered in the US so it would take resources to change over. – neo Jun 16 '11 at 23:00
Perhaps that was a strategic mistake. – user10393 Jun 17 '11 at 0:59
Just moving your web server out of the U.S. may be enough to avoid infringing a U.S. patent. You wouldn't need to change your registration. – user6603 Jun 17 '11 at 2:22
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Once again, I'm not a lawyer, but I doubt if moving the server outside the US would really protect you. That sounds like wishful thinking, frankly. – Joel Spolsky♦ Jun 17 '11 at 2:25
I can't believe an "intellectual property law attorney" would make a statement like that... – TimJ♦ Jun 17 '11 at 4:04
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