Comment by noonespecial | Hacker News Reader

Comment by noonespecial | Hacker News Reader

I discovered a patent application filed in 2002 that definitely encompasses the concept of my product.

Only one? Look harder, you should be able to find dozens, all overlapping and contradicting each other.

Can he even license it before a patent is granted?

Anyone can license anything at any time. Its just an agreement not to sue. Of course, it won't help you if any of the other bazzilion people who think its their brilliant idea decide to sue, as the one thing that never seems to be offered along with generously taking your money is any kind of indemnity.

In short, it would have been better not to look. Forget you saw it and just do your thing. What you produce at the end will probably be so different than what you set out to, it won't matter anyway. If you do become successful, a long line will form of people who claim you've stolen their idea. You'll have a legal staff to deal with it by then.

Of course, I'm not a lawyer. A real lawyer would probably snort whatever he was drinking out his nose upon hearing advice like this...

Generally, if you have an idea and are wondering if any patents would interfere with it, you can ask a lawyer (pick one who knows about patents) to conduct a "right to practice" search. They will look through the existing patents to see what might affect your products, and they can also look into whether there is prior art to defeat those patents.

A lawyer should also be able to explain to you that a patent application hasn't been examined by the patent office yet, so its claims (the part you care about) are subject to change as the examiner reviews them. They can usually provide a watching service to you, to monitor the status of the application you're interested in, as it goes through the patent office.

Investors are going to love you

A patent license protects you from suits by the licensor. It may protect you from suits by others IFF the licensor warrants that his patent is valid. Edit note that this presumes the patent is granted.

DO NOT FORGET YOU SAW IT (sorry for the all caps pg, but this is important). If you are successful, you are liable for all profits, and revenues that would have been due under the standard licensing agreement (or a reasonable % if none is established). If you aren't successful, you are still liable for a portion of revenues.

However, don't worry about the patent until you are ready to bring a patent to market b/c you don't violate the patent by prototyping or researching; you only violate a patent by putting an infringing product on the market.

IAALBYANPM, so hire one if you really want to proceed.

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