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Is it possible for an independent developer to self-publish software? Even if you crossed your Is and dotted your Ts, documented prior art for every single idea you were conscious, that at least a dozen patents would end up being infringed upon regardless on the nature of the non-trivial-project, even if you went to court and were found innocent the minimum damage is estimated two million, so you can imagine how vulnerable that makes an independent publisher and developer to trolls.

What steps, if any, should an independent developer take in avoiding litigation? It honestly seems impossible at this point. Despite five years of school and ten years of research, I've decided to stop all further development until I find some answers. For the amount of time and research it takes to be successful, the chance of success seems extremely poor.

I've looked at everything I can imagine, from forming an LLC to finding an expired patent or prior art for every idea, but nothing seems to guarantee that I won't lose my house/car/wife/kids etc... Normally I'd be the type to take a risk, but these odds are nothing short of Blackjack in Vegas using a no-limit credit card with a professional dirty dealer.

Over eighty million (EDIT: BILLION) a year in damages to the economy by trolls alone, it's no wonder there are virtually (EDIT: relatively few) no small businesses (and thus few jobs) operating in this sphere.

Is it even possible for us?

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2 Answers 2

"Virtually no small businesses in this sphere"? There are thousands of small software startups. A site I just googled that lists jobs in software startups showed 2000 openings.

You can incorporate, you can buy patent insurance and they can't really take your wife and kids. The GAO put out a report this week on the impact of patent litigation that has data showing "trolls" are involved in only about 1/5 of the cases. I think 2 million is an average not a minimum.

An opinion: It does sound daunting but software companies are started every day, some small ones grow huge and valuable and to better judge the impact of the number of millions "lost", it should be viewed as a numerator over the denominator of a 300 billion software industry.

Rather than trying to establish that everything you are doing is old why not truly innovate?

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The problem is even if I did innovate, so many things fundamental to application development are patented. And that like music, if you're going to make something recognizable and publishable to the market, it's going to have to have old-fundamental ideas in it. If making software was doable with just a single good idea I'd be inclined to agree, but any one software is a mashup of hundreds or thousands of them. As for a 300 billion software industry, at 80 billion a year to trolls ALONE, that's a pretty big "fraction". This still leaves the question about avoiding litigation. –  Trae Barlow Sep 1 '13 at 9:47
    
To put it in legal terms try and have a court procedure without the concept of Stare Decisis. I wouldn't go around calling lawyers names if they couldn't get anything done in that environment. Imagine if the defendant could put patents on court procedure, and you'd be left trying to enforce your patents with precedence set 20 years ago. Would you be a non-innovative attorney for not winning your cases? Yeah, didn't think so. –  Trae Barlow Sep 1 '13 at 11:15
    
An article on the lack of jobs and developers leaving the US and it's market behind. arstechnica.com/apple/2012/10/… "[T]he fact that any new technology coming out of the US is immediately infected by parasites like Lodsys means you'd have to be insane to launch anything significant there."--Arstechnica –  Trae Barlow Sep 3 '13 at 5:52

For example, lets take a look at all the FUD created by this patent. http://arstechnica.com/gaming/2009/09/multiple-mmo-developerspublishers-named-in-patent-suit/

It seems publishing a video game with multiplayer features violates this industry-wide patent. So, as an indie game developer, you're restricted to single player only (and another slew of related patents in that area, I'm sure) if you don't want to risk of earning the interest of these specific patent holders.

Even if you had truly innovative ideas and were going to do things nobody had done before, multiplayer gaming requires that you "allow players to experience the same digital environments simultaneously." --Arstechnica

As far as I can see there isn't any straightforward way to license this "technology" meaning this patent alone could literally be the death of an entire industry (indie published multiplayer games).

Anyway, this isn't to say "boohoo it's hopeless" but to figure out how it's possible to avoid litigation in the indie game software industry. So, in the spirit of staying positive lets explore our options/solutoins.

I understand that this patent could be overturned (but you never know), but when you consider that for indie developers working a full time job, working in their garage in their spare time, R&D, licensing and publishing costs alone are more than they can afford in terms of both time and money. Add legal fees and time spent litigating and there isn't hardly any time/money left to put towards their project. Maybe the "brilliant developer working out of his garage" scenario isn't something society rewards anymore..

Just for the sake of some hope in the face of complete despair, let me say this. I think there is somewhat of a solution to be found in the wisdom of picking the right publisher. As such I'm opt to ask, what are some positive characteristics to look for in a publisher, would the publisher or the developer be held accountable for the infringing a patented "technology"? What benefits could be found by expecting a publisher to hold some wealth in software patents? What are the potential downsides if they don't have any? Any knowledge/advice on the relationship between patent law and picking a publisher would be well within the spirit of this Q&A.

I'm not a lawyer, so any speculation here should be taken as tongue in cheek, an exercise in theory/philosophy, not legal counsel.

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Fyi,The patent in question in that lawsuit was 5,822,523. The inventors were the founders at Mplayer.com an actual pioneer in this space. Wikipedia says they were responsible for Quake and many others. –  George White Sep 3 '13 at 5:38
    
Mplayer was not responsible for Quake. It's funny you bring this up, cause I played on Mplayer in my middle school years, I know exactly what their software did, and it had as much to do with virtual worlds as this page has to do with web-server design. ID software was responsible for Quake, I assumed this was common knowledge. All Mplayer did was provide a chatroom/lobby similar to Google Hangouts for match-making and hosting services for ID software's server program. That was the end of their contribution. It's the equivalent of a web-host suing Microsoft for ISS. DooM would be prior art. –  Trae Barlow Sep 3 '13 at 6:37
    
Actually, this looks like it could apply to QuakeWorld. It took a minute, but looks like a patent on "client prediction". Except QuakeWorld predates this patent by a little less than a year. en.wikipedia.org/wiki/QuakeWorld I remember hearing about some fiasco when QuakeWorld launched, I'll have to dig up some old web-documents on the subject. –  Trae Barlow Sep 3 '13 at 7:04
    
I do not know anything about the substance of this and am not at all "taking sides" but the article you cite says they released quakeworld in dec of 96 and the patent in questio was filed in feb 96. I think you were looking at the issue date in 98. –  George White Sep 4 '13 at 21:39

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