Suppose the following situation: A company is incorporated in a country other than U.S.A., which does not allow software patents (e.g. EU member countries). This company produces an invention as a result of its own research which is embodied as a software product. The results of this work are not screened for being patentable, because it's no even possible for this legal entity according to local law. The company is “in good will”, that it doesn't infringe anyone else's rights, selling the software internationally. Further suppose that there is a valid patent filed with the USPTO which covers portions of this company's idependent achievements.
What will be the legal consequences in the following cases:
- the software product is sold in the US by means of electronic software distribution directly by the foreign company;
- the software product is sold by a reseller incorporated in the US;
- the company establishes a subsidiary in the US which then handles sales in the US?
Note that research and development in this case remains in a country which does not allow software patents.
Is the US patent holder empowered to file a lawsuit againts the foreign company / its reseller / its subsidiary in either case? Are there any other legal consequences, or claims made possible by either party?