This might seem weird, but what could happen if I document (video, notes, emails, logs, etc) the development of a software application and a company sues me because they have a patent from them that I supposedly violated (but I didn't even know anything about that patent)?

Is there a way I could defend myself (or company or organization) in a lawsuit by showing that in no moment of the development did I consider or look at that patent?

  • When you use the word "register" above, you do you mean "document"? Oct 22 '12 at 14:50
  • Yes, but also if I have project meeting discussing my project, I could have video or sound recorded the meeting. Oct 22 '12 at 15:54
  • You need to provide some detail in your question. "Software" cannot be patented, it is protected by copyright. The idea used in the software app (the invention) may be patented. Some specifics about the patent and the alleged infringement may help - even if it is just a hypothetical scenario.
    – Ron J.
    Oct 22 '12 at 19:07

Unfortunately no. Unlike copyright, infringing a patent doesn't require that you copy anything. Independent invention is not a defense. However, there is a small consolation: you won't be liable for intentional infringement, which would mean you would be on the hook for 3 times the amount that the patent holder would normally be entitled to.

Now, the story is entirely different if those logs, notes, etc., date back to before the time the patent was filed or purportedly invented. If that's the case, please clarify your question and I'll give you a summary of what it might mean (could be good news for an accused infringer).

  • 2
    A relatively small number of patent lawsuits involve direct copying. Rather, most are like yours where someone develops a product and later figures out that they are infringing (usually after receiving a severe letter from the patent owner). Oct 22 '12 at 15:56
  • What happens if my records show that I developed it before? (even if I didn't patented it) Oct 22 '12 at 17:52
  • 3
    Fairly complex question with a partial answer. If you developed it first then you may be able to invalidate the patent, but the burden of proof is heavy. In most cases where someone says they have evidence of prior invention, it turns out that they do not have sufficient evidence. There is a change in the law with the new First-to-File system. Under the new system (being implemented in 2013) the invention date will be largely irrelevant. In both systems, the best way to protect yourself against someone else's future patents is to file your own patent application or else publish your work. Oct 22 '12 at 19:28
  • Thank you @DennisCrouch, but what do you mean by publishing my work? If I develop an Open Source system, for example, I will be able to avoid lawsuits from patent holders? Oct 23 '12 at 14:05
  • Just being Open Source doesn't mean it's published. I could slap a Creative Commons license on a script I wrote and keep on my hard drive, which makes it Open Source, but certainly not published. To be published, it needs to be available to the relevant public. Posting the code on GitHub, for example, would probably work, as long as someone with expertise in the area would be able to find it if they looked.
    – m3lvn
    Oct 23 '12 at 16:23

I don't entirely understand some parts of your question (maybe if I spent more time....), but you may improve your standing by proving you did not know of a patent when you violated it (if at all anything in your question amounts to violating a patent). As far as I know that may avoid any damages you may need to pay from tripling, which they may, if it is proven you knew about the patent when violating it. So yes, being in a position where you can prove you didn't know of it, or in a position where it can't be proven you did (not sure which of the two), does come to your aid in this specific manner.

  • (It's just not clear how you would violate a patent by filming 'it', that's what's not clear in the original question as asked)
    – matt
    Dec 18 '13 at 20:23

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