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We are currently trying to set up a startup that sells a software product online. The software can be downloaded worldwide and paid for via Paypal. Our company is a limited liability company based in Germany.

We recently got mail from a US attorney stating that we are infringing a patent they own.

The patent in question covers a process commonly used in software products and depicts a simple backup scenario. (More here: Prior Art for Onsite backup for internet-based data processing).

Our feeling it that it is a classical example of a patent troll and that we might want to wait at least for the SHIELD act.

The interesting thing is that in Germany that kind of patent does not exist (for some very good reasons I guess).

We are not dependent on the US market and could block US visitors from entering our site. But would that be enough? What is the worst thing that could happen? Any advice on how to proceed would be great.

Thanks!

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See related post re. foreign entity and US patents patents.stackexchange.com/questions/48/… – Ron J. Nov 20 '12 at 21:47
You should consult a licensed U.S. attorney with experience in defending against patent infringement allegations. If you deal with an attorney in Germany for other matters, consider asking him/her to get a referral for you. You should not, in any way, rely on legal advice given on an internet forum. – Jay Smith-Hill Jan 23 at 21:54
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@Raph Allow me to disabuse you of that notion that "such kind of patents don't exist in Germany" with something a random 2-minute search turned up: google.com/patents/EP1540441B1?cl=de – kinkfisher Jan 30 at 3:18
@kinkfisher The main difference is that the patent is about hardware and software. Software per se is not patentable. But the patent you described is really scary, too. And really basic. Does not make me feel that the patent system in Ger is working either... Thanks! – Raph Jan 31 at 8:34
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@Raph The "onsite backup" patent you originally cited is about hardware and software too; the claims clearly require "central" and "client" computers and "communications links", which are essentially hardware components. My point was that so-called "software patents" exist in many parts of the world outside the US, including the EU. Software not being patentable in the EU is a myth stemming from misunderstanding what "software per se" really means. The reason you don't have many lawsuits over patents like this in EU, though, is the litigation environment is very different (loser pays etc.) – kinkfisher Jan 31 at 19:49
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