As a private person, how do I develop a free standard without being sued by patent trolls?

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+3 Q:

As a private person, how do I develop a free standard without being sued by patent trolls?

I want to develop a free standard (free as in non-proprietary) along with a free reference implementation.

Please understand that I don't want to go into depth of my idea (yet). It is, though, a serous idea. I've been now working nearly a year during my spare time on the specification and started with a reference implementation.

Do I need to be afraid of patent trolls suing me, because of some (eventually trivial) patents?

If not, what if I later want to provide some commercial support and/or create dual-licensed tools related to my standard?

Could some organization (such as the FSF) legally support someone like me?

+2 A:

IANAL, but if your reference implementation and specification are such an apparent target for litigation, the first thing you'd want to do is erect appropriate defenses. Generally, this means forming an organization that holds the copyright to the work. In this way, you're less likely to be sued directly (although it's certainly still possible).

Also, I'd definitely drop a line to the FSF and see if you can get some more concrete advice, if you're willing to share what you're working on with them. I've talked to them a couple of times before on unrelated matters and I've always been able to have a very productive and insightful conversation.

I want to develop a free standard (along with a free reference implementation).

P.S.: I'm assuming you mean "free as in freedom, not free as in beer".

John Feminella 2009-03-26 01:55:49

There is no appropriate defense if you are infringing someone else's patent. Either you're infringing or not. An organization will not provide any greater protection than a single person.

Jordan L. Walbesser 2009-03-26 15:06:16

I think he wants to defend against *frivolous* patent litigation (I assume that is what's meant by "patent trolls"). Obviously, if you are committing an act that carries criminal or civil penalties, you're not shielded.

John Feminella 2009-03-26 15:30:13

Frivolous or not, there is no affirmative way to protect yourself from a "patent troll" besides beginning proceedings to invalidate their patents and sometimes it is best to let sleeping dogs lie.

Jordan L. Walbesser 2009-03-26 15:50:53

I don't think that's true. Isn't patent misuse widely considered an affirmative defense?

John Feminella 2009-03-26 15:56:12

That's a great question - see 35 U.S.C. § 271. Patent misuse is an umbrella term for violation of antitrust laws or improper expansion of the scope or term of the patent. The problem is that there is nothing you can do to prevent yourself from getting sued. Patent misuse is argued in court.

Jordan L. Walbesser 2009-03-26 19:40:10

We might be splitting hairs here. I'm saying there's nothing you can do to defend against having patent holders sue you. It should be relatively simple to knock off a patent troll, but any court action is expensive.

Jordan L. Walbesser 2009-03-26 19:44:38

I agree that there's nothing you can do to prevent getting sued, but you can at least make it difficult to sue you *personally*. Hence the act of making an organization to hold the IP. You'd know better than I would, though. :)

John Feminella 2009-03-26 20:42:19

Having an organization to hold the IP won't make it any less of a target, however if someone were to sue and win, only the assets of the organization (lets say...a corporation) could be garnished. So maybe, in a roundabout way, less likely to sue because less money is there?

Jordan L. Walbesser 2009-03-26 22:13:31

Yes, that's exactly what I'm referring to. It's the same reason you'd form an LLC for a private consultancy -- to protect your personal assets from litigation and to separate them from the org's assets.

John Feminella 2009-03-26 22:26:11

+2 A:

Let's say you develop and publish this open standard. You won't have to worry about any patents in the US filed after the date of your publication because you invented first. (See 35 U.S.C. 102(a)).

As for patents that were filed before your date of publication, then there is a problem. It is possible that you might be infringing on an existing patent. Since you didn't give much detail about your standard, I'd suggest doing a brief patent search yourself (google.com\patents) and then when you want it to count, contact an intellectual property lawyer to do a thorough search.

Registering for a copyright on your documentation would only protect you from other people that copy your standard verbatim, not for using it.

By all means would you be able to create tools for a standard you created, unless of course your standard and your tools infringe someone's preexisting patent.

It is perfectly possible that the FSF could help support you in one way or another. Feel free to contact them and they might be able to point you to effective legal representation. FSF Contact Page

As always, none of this should be construed as legal advice! Good luck!

Jordan L. Walbesser 2009-03-26 15:16:15

Consult a good patent agent. That's what they do.

Dominic Cronin 2009-03-26 15:25:31

ansaurus

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As a private person, how do I develop a free standard without being sued by patent trolls?

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