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Premises:

  • Any complex software product uses many algorithms, steps, techniques and so on
  • There's a patent on almost any method and system in software, even such that are trivial by now but still didn't expire. There is no likely way to conduct a thorough check into whether a complex piece of software violates any patent or not, using today's tools.
  • Software patents are arguably in about half the cases very abstract, vague and vague to determine what range of trivial stuff their claims cover

Legal premises

  • In court proceedings, damages may be awarded as 3 times the basic amount arrived at, in case the infringing party has known about a patent while practicing it.

Key Question:

Is it then, not better for a software startup not to read patents in its domain (other than if it needs to make a search prior to filing its own!)?

Rationalization:

  1. Finding whether a software startup violates any software patent would take a human something in the order of magnitude of a century without sleep and food.
  2. It will fill their heads with all kinds of vague worries pushing them off to a state of mind that does not allow doing creative work or being very productive in general, as an understatement.
  3. It subjects them to a risk of finding themselves paying damages 3 times their sales, e.g. closing their business, rather than a risk of paying some damages that can also be more possibly negotiated

Clarification

This question is asked in good spirit, not one that tries to cheat or be unethical.

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1 Answer

up vote 1 down vote accepted

The premise of "3 * sales" is not correct. The treble damages for willful infringement is 3 times whatever it would have been otherwise. It is not always imposed.

Other than that, yes. Staying ignorant of possible patents out there is a very reasonable plan whether for software or for hardware.

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Thanks for pointing out the mistake. So in theory, the amount of base damages (which may be tripled if 'treble damages' is applied), is based on what? –  matt Dec 18 '13 at 19:39
    
And are there other motivations or benefits to the 'staying ignorant' strategy except for possibly avoiding treble? –  matt Dec 18 '13 at 19:44
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Patent damages is a whole field to itself. The short answer is a reasonable royalty or lost profits. Plus stoping you from continuing to infringe. –  George White Dec 18 '13 at 19:48
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Flipping the question around, there are benefits to doing a search. You might find a key patent you can affordably license in some field of use exclusive manner. You might be able to design around the patents you find. You might learn something that is not covered a claim that you can use to improve your product avoid a dead end. The worst-case is you browse patents but do not study them. You get no real benefit from it but it may be provable that you downloaded a copy of a killer patent. –  George White Dec 18 '13 at 19:51
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