Hacker News Reader

Comment by sergiotapia | Hacker News Reader

Stop building things within the US, it's patent system is broken.

There are a few different reasons I do not agree with this comment. For one, I refuse to subscribe to the idea that it's OK to run away from the problem and let patent trolls win by default. I'm the kind of person that stands up for what they believe is right, and thus I would prefer to stand and fight a patent troll. I applaud the organizations out there that are taking a stand (NewEgg, Rackspace, etc). You win some, and you lose some, but in the end I think it's important that people take a stand for what they believe is right. Another reason I do not agree relates to fragmented markets/laws outside of the US. While I think many will agree that the US Patent System has many problems, the one thing it does do well is remain consistent. When you look at the landscape outside of the US, it becomes very fragmented and inconsistent. You may or may not have rights. You probably won't get sued by a patent troll, but you might get ripped off. As an example, consider the Samwer Brothers and their approach towards respecting intellectual property. Granted, this is the other (extreme) end of the spectrum, but it's something to consider. So while the US System does have some problems, there are also some positives that can actually work in your favor. My takeaway from the entire issue; Do your own due diligence. I'm not a Lawyer, but I do know how to search the USPTO Database for Prior Art. It's not rocket science, anyone can do it. If you are a founder, and you are worried, spend some time researching it. I recently made a pretty major UX change to one of my projects based on this advice. I identified a (Microsoft) patent that related to what I was building, and I made sure that my upcoming product does not infringe. Of course one cannot be expected to catch all prior art, but I believe it should still be included in the process at some level.

> "I'm not a Lawyer, but I do know how to search the USPTO Database for Prior Art. It's not rocket science, anyone can do it. If you are a founder, and you are worried, spend some time researching it."

You must be careful about doing research into patents yourself (as a founder or engineer). If it can be proven that you had prior knowledge of a patent, then you may be liable for treble damages.

> "For one, I refuse to subscribe to the idea that it's OK to run away from the problem and let patent trolls win by default."

Patent trolls "win" by extracting money from companies producing/doing actual things; see the recent Newegg case and many others. If you are thinking about creating a company or innovative product, and also decide to launch said company/product outside of the U.S., then you effectively deny them battle. You cannot lose a battle that you do not fight.

"He who knows when he can fight and when he cannot will be victorious." - Sun Tzu

From my understanding (which may be limited), treble damages only apply when someone willingly infringes on a patent. So this would be a scenario where someone identifies a patent that relates to what they're building, but they build it anyway. This is very different from identifying existing patents specifically to ensure one does not infringe. In this second scenario someone identifies a patent that relates to what they're building, so they modify what they're building as not to infringe. In some (extreme) cases, this might mean the project should be abandoned. In other (not so extreme) cases, this might mean you need to change one (or more) aspect(s) of the project. In any event, and aside from the legal aspects, I think it's a good exercise for anyone building something. You might avoid future legal issues, you might become more aware of where technology is going (vice a perspective built on currently released products), and it might help you innovate further. Brain food.

I believe that patent trolls "win" when everyone is too scared to stand up for what they believe in. Plain and simple, if people don't take a stand, then things won't change. And I don't necessarily mean just taking a stand in court, I'm talking more about how we (as developers and innovators) react to the issue. I agree that leaving the US will probably lower your chances of becoming a patent troll victim, but everything is relative. Maybe you're building something truly novel and innovative and you want to protect it? Would this outweigh the risk of becoming a patent troll victim? I guess it depends on what (and where) you're building.

It's for this reason I'm abstaining from opening up any company in the US and sticking to Europe until the patent trolls are reined in. I can imagine many foreign-born entrepreneurs are now taking the same approach, especially as the number of lawsuits appears to be increasing (800 vs. 2,900 small firms sued in 2005 [0]) with a further ~100,000 receiving letters from patent trolls demanding payment in a single year.[0]

[0] http://arstechnica.com/tech-policy/2013/09/op-ed-how-patent-...

Well, that's an interesting question... Would a company be any better off incorporating in hong kong or something when it comes to patent disputes? I've been looking into this for various reasons already...

How about a foreign corp that owns the IP (which a patent troll may at some point arbitrarily claim was infringing) licensing that IP to a US-based corp. Is the US-based corp exposed to any liability? Probably? Maybe?

Probably not. I'm under the impression it's where you do business that counts, not where you're incorporated. If you're incorporated in HK but have offices in SF you're likely exposed. The best bet is to start your company in Europe or some other sane business-friendly jurisdiction without offices in the US at all. Patent trolls have no power there.

For Americans, the Dutch-American Friendship Treaty[0] might be just what you're looking for.

[0] http://en.wikipedia.org/wiki/DAFT_%28treaty%29

If you sell to the US it does not matter.

Patent trolls don't go after non-US software companies so long as there's no US entity or office, mostly because they can't.

Patent trolls can sue the customers of the software company (as Microsoft did to Google by suing Samsung), or the trolls can seek to obtain the money which is paid to the respondent (software company) from the USA. It is more difficult to sue non-US companies for some issues other than patents.

For a lot of purposes though, that's unlikely to happen for small companies. I struggle to imagine Lodsys and friends suing someone who downloaded an app from Google Play or paid for a web app. Plus, if the money has already been remitted (and that tends to happen especially fast in the world of low ATVs), they haven't got a hope.

As one patent troll told me on reddit, there's just too much gold to mine and low hanging fruit in the US to bother with anyone else.

Uniloc sued Mojang (makers of Minecraft), which is a Swedish company. In Texas of course.

Mojang is bigger than many small companies, but is still quite small.

Thank you for pointing this out! I've actually been trying to find an example of a patent troll suing a foreign corporation that doesn't have offices in the US. This lawsuit does appear to be very rare and exceptional, and here's the complaint: http://notch.net/wp-content/uploads/2012/07/mojang.pdf

I wonder whether they'd have actually been successful had they not withdrawn. It seems a bit strained that they claim they're doing business in Texas.

What makes you say that the suit was withdrawn? I can't find confirmation of that anywhere.

Apologies, I think I'm wrong. I appear to have misread or misremembered what I read.

That is just god damn disgraceful. http://www.google.com/patents/US6857067

"System and method for preventing unauthorized access to electronic data"

What in the world is going on with the US patent system that things like this are emitted.

Reply on news.ycombinator.com