Software patents are evil
August 3, 2010 9:42 AM Subscribe
The license system used by my company supposedly infringes a patent. Help me find some examples of similar license systems which existed before the patent was granted.
If I can find some examples of software with a similar license system to mine, I stand a much better chance of winning a fight should we arrive in court. Unfortunately, the patent was granted in 1991 and I'm having trouble finding specific products that with a licence system like mine that were published before that.
My software requires that you type in a license code during the installation process. Thereafter, every time you run the software it checks the license code to make sure it is valid. If the code is ok, the software runs. If not, the software doesn't run.
What commercial products or shareware written in the 1980's were protected by a license code scheme similar to mine? Further, did any industry literature of the time describe a scheme like this? If I can demonstrate that the technique was well known in the industry, it would help my case.
If I can find some examples of software with a similar license system to mine, I stand a much better chance of winning a fight should we arrive in court. Unfortunately, the patent was granted in 1991 and I'm having trouble finding specific products that with a licence system like mine that were published before that.
My software requires that you type in a license code during the installation process. Thereafter, every time you run the software it checks the license code to make sure it is valid. If the code is ok, the software runs. If not, the software doesn't run.
What commercial products or shareware written in the 1980's were protected by a license code scheme similar to mine? Further, did any industry literature of the time describe a scheme like this? If I can demonstrate that the technique was well known in the industry, it would help my case.
devinemissk said it all. You need an attorney versed in patents, IP and the like.
posted by jquinby at 9:51 AM on August 3, 2010
posted by jquinby at 9:51 AM on August 3, 2010
This would be a good question to ask on Slashdot, moreso than here, I should think. If you haven't, I encourage you to do so.
posted by davejay at 9:51 AM on August 3, 2010
posted by davejay at 9:51 AM on August 3, 2010
Do you have a lawyer? You should.
Agreed. Are you sure this patent actually exists? Even among the realm of crazy software patents, this one seems extra crazy- one we'd hear about far and wide because pretty much everything infringes on it these days.
That said- I'm a bit foggy on it, but I recall early versions of MS Office and PageMaker for the Mac having some sort of per-user licensing in the software.
posted by mkultra at 9:53 AM on August 3, 2010
Agreed. Are you sure this patent actually exists? Even among the realm of crazy software patents, this one seems extra crazy- one we'd hear about far and wide because pretty much everything infringes on it these days.
That said- I'm a bit foggy on it, but I recall early versions of MS Office and PageMaker for the Mac having some sort of per-user licensing in the software.
posted by mkultra at 9:53 AM on August 3, 2010
The most important thing in your post: " the patent was granted in 1991"
Which means that it's amay not be enforceable - back in 1991, patent terms were 17 years, with a few exceptions. Don't take my word for it, though: An IP attorney will be able to tell you for sure.
posted by deadmessenger at 10:03 AM on August 3, 2010
Which means that it's amay not be enforceable - back in 1991, patent terms were 17 years, with a few exceptions. Don't take my word for it, though: An IP attorney will be able to tell you for sure.
posted by deadmessenger at 10:03 AM on August 3, 2010
Can you link the patent here? You can find it on www.uspto.gov.
You're first line of defense is infringement, second is validity.
1) We didn't do what they say (there is a subtle but important difference in our way)
2) Their patent is obvious, or was granted erroneously given well known prior art.
1 can could be granted on summary judgment, but if you go for 2, you can expect to spend well over $1 M in expenses, so you'd want an industry consortium for that.
posted by StickyCarpet at 10:08 AM on August 3, 2010
You're first line of defense is infringement, second is validity.
1) We didn't do what they say (there is a subtle but important difference in our way)
2) Their patent is obvious, or was granted erroneously given well known prior art.
1 can could be granted on summary judgment, but if you go for 2, you can expect to spend well over $1 M in expenses, so you'd want an industry consortium for that.
posted by StickyCarpet at 10:08 AM on August 3, 2010
I work with patent licensing and I've written one book on software patents.
What you are talking about is novelty destroying prior art - that is to say the patent would be invalid because it was not a new invention and you can't infringe a valid patent.
You should try the EFF as a start. If you have a problem with this patent then there are others who also might have the same problem and the EFF coordinates "patent busting" efforts.
And seconding the SLASHDOT recommendation. But that is a really public forum and maybe this could create as much problem as solution. Be circumspect in everything you write - it could all be used against you in a court of law.
Also if you can show you are using a technique described in an expired patent - the so-called Gillette defense - you are as safe as can be. Expired patents are in the public domain for everyone to use. Searching old US and EP patents (www.espacenet.com) is often quite helpful.
If you are lucky enough to find what you are looking for DO NOT SHOW IT TO THE PATENT HOLDER. You run the risk that she will run to the patent office with your prior art and file a re-examination of her own patent. The process is not entirely open and the patent holder will get to argue her case to the patent office. If the patent survives re-examination, then your defense is pretty much ruined.
The best use for prior art is in front of the jury. Save it for when you really need it.
And yes, the best thing to do is to talk to a patent attorney who can give you specific guidance.
posted by three blind mice at 10:18 AM on August 3, 2010 [1 favorite]
What you are talking about is novelty destroying prior art - that is to say the patent would be invalid because it was not a new invention and you can't infringe a valid patent.
You should try the EFF as a start. If you have a problem with this patent then there are others who also might have the same problem and the EFF coordinates "patent busting" efforts.
And seconding the SLASHDOT recommendation. But that is a really public forum and maybe this could create as much problem as solution. Be circumspect in everything you write - it could all be used against you in a court of law.
Also if you can show you are using a technique described in an expired patent - the so-called Gillette defense - you are as safe as can be. Expired patents are in the public domain for everyone to use. Searching old US and EP patents (www.espacenet.com) is often quite helpful.
If you are lucky enough to find what you are looking for DO NOT SHOW IT TO THE PATENT HOLDER. You run the risk that she will run to the patent office with your prior art and file a re-examination of her own patent. The process is not entirely open and the patent holder will get to argue her case to the patent office. If the patent survives re-examination, then your defense is pretty much ruined.
The best use for prior art is in front of the jury. Save it for when you really need it.
And yes, the best thing to do is to talk to a patent attorney who can give you specific guidance.
posted by three blind mice at 10:18 AM on August 3, 2010 [1 favorite]
you can't infringe a valid patent.
Can't infringe an INVALID patent. There fixed that for me.
posted by three blind mice at 10:19 AM on August 3, 2010
Can't infringe an INVALID patent. There fixed that for me.
posted by three blind mice at 10:19 AM on August 3, 2010
Mod note: Answers with the helpful parts but not the being-shitty-to-other-users parts are going to stick around a lot better than ones with both.
posted by cortex (staff) at 11:37 AM on August 3, 2010
posted by cortex (staff) at 11:37 AM on August 3, 2010
Andrew Tridgell did a talk (self-link) at Linuxconf 2010 on lines of patent defence; as one of the core developers of Samba he's needed to learn about this more than most. The upshot of his advice is that the line of defence you're proposing is really, really hard, and quite a long shot:
(The link contains a slightly typo-ridden summary of liveblogged advice from Tridge's talk on how to build a defence that's more likely to work. Which involves, yes, talking to a patent lawyer.)
posted by rodgerd at 11:48 AM on August 3, 2010
invalidity: “you can’t claim that!” - almost impossible! You need megabucks for a phenominal legal team. The stuff of legal papers and breakthrough cases.I'm sorry I don't have the specific prior art you're looking for, but you need to be aware that people who have faced these sorts of claims (and won) recommend against relying on it as an approach.
(The link contains a slightly typo-ridden summary of liveblogged advice from Tridge's talk on how to build a defence that's more likely to work. Which involves, yes, talking to a patent lawyer.)
posted by rodgerd at 11:48 AM on August 3, 2010
My software requires that you type in a license code during the installation process. Thereafter, every time you run the software it checks the license code to make sure it is valid. If the code is ok, the software runs. If not, the software doesn't run.
You mean the system that 99% of all software used up until recently (when online registration was added to make things more painful)?
posted by Chuckles at 2:10 PM on August 3, 2010
You mean the system that 99% of all software used up until recently (when online registration was added to make things more painful)?
posted by Chuckles at 2:10 PM on August 3, 2010
I suggest you ask the mods to post a follow-up with the number of the patent the complainant is claiming you are infringing.
posted by Mike1024 at 3:33 PM on August 3, 2010
posted by Mike1024 at 3:33 PM on August 3, 2010
This thread is closed to new comments.
posted by devinemissk at 9:45 AM on August 3, 2010