building a software which already patented in US by IBM

Question

I was in process of researching web for potential competitors for a software (web site) I was going to start building, when I found that a patent for a similar software already exist in US (US patent). That patent describes a software application which looks pretty similar to what I have envisaged and it also describes the algorithms which are also quite close to what I am using.

Though I am not in US (NZ actually) but I am a bit concerned whether to invest time and money to build such a software or to give up since this particular patent seemed to be lodged by guys from a research devision of IBM - hence I dont think I would be in position to win a legal battle with them shall such issue arise.

What really bothers me is the fact that even there is such a patent, there is no software of that type is currently available. It may be available in a research lab, but it is not available to general public, you can't download it or there is no a web site with such functionality.

What do you think I should do in a situation like this? Ignore the fact that there is such a patent and build my software anyway or contact these IBM guys and ask for a permission to use a patent? I am not initially planning to make money with that software, but if it will take off I would have to (have a lot of plans which I could only implement working full time on it).

I don't want to be stopped by the fact that some big company has patented a good and quite obvious idea and would like to try anyway.

Any directions from a people who were in such situation before please?

Answer 1

Get a lawyer, preferably one who understands US patent law.

Answer 2

IBM's patent lawyers are only going to come around if you're making a bunch of money. At that point, if there is prior art, you may have a case that their patent is invalid. Either way, you've made some money - then you can afford lawyers and license fees. No point in paying for lawyers until you know you're making money - because no one's going to try to do anything until you're making money.

Patents are designed to stop people making money from your inventions until you've had time to make money in return for you disclosing the technique for the public good and it becoming part of the public domain after your fixed term expires.

Many/most of us use patented techniques all the time - the state of the patent office has allowed many bad patents because they don't require good (patent and non-patent) prior art searches.

I wouldn't worry about it unless you have investors already - you have to disclose potential risks and how you are mitigating them.