Re: [DIYbio] O'Reilly BioHacker Issue 4: Open Source Biotech Consumables

Sure, but on the other hand, you can't rotate a phone without causing an
infringement. If you make a cool thing, you *will* someday face patent
trolling if you are successful at reaching a significant market, whether
from incumbents or from professional trolls.

There are patents to cover *everything and anything*, and depending on
where you're based, it's possible that they can reasonably expect you to
settle out of court even for trash or easily revokable patents, because
the cost of combatting the trolls is greater than the money saved by
just paying the demanded money.

So, the challenge as I see it is identifying whether there are any
patents that explicitly cover what you are doing, and whether those
patents are held by people who will quickly become aware of what you are
doing, rather than whether patents exist per-se. If a patent exists that
can be used to harm your work (it does) but it's held by an institution
somewhere far away without a long history of litigation and which will
not be immediately aware of what you're doing, then you'll have time to
succeed before they try and destroy you. If the patent is held by a
direct competitor who's litigious, you've got a problem.

Also consider some advice that I got from another, which you can't
legally follow but is good to know. Consider these scenarios:

A) You do what the law requires. You do an exhaustive patent search,
identify patents that you need to license, and ask all the various
patent holders for licenses to the technologies you'll need. In the
entirely fictional scenario where this many licenses doesn't immediately
bankrupt your business before you even get started, imagine one of them
refuses to license the technology. As you are still at ideation stage,
you have no legal recourse, and that's game over. The patent holder said no.

B) You make a great thing, you sell products, and you employ a few
people. A patent holder comes to try and shut you down. You ask the
patent holder if you can license the offending patent and get on with
your business as a fair competitor. Now, if the competitor refuses to
license, or offers terms that are unreasonable, they are vulnerable to
antitrust counter-litigation because they are abusing their dominant
market position to prevent competition.

So, when it comes to patents, the advice from this person (who is more
experienced and knowledgeable in the practicalities of navigating this
bullshit) is: It's easier to ask forgiveness than permission.

On 03/12/14 10:06, Josh Perfetto wrote:
> If you just do that, you're missing more than half the picture. How will
> you know which claims are strong, weak, or basically unenforceable? You
> need to know litigation history, and industry history. Who is licensing
> what and who is not licensing what? Many invalid patents are issued and
> there are multiple procedures to challenge them. Patent holders know
> this and think about this. If you did an exhaustive google patent search
> and accepted everything verbatim you will not be able to rotate your
> iPhone without causing an infringement. There's many real-world issues
> here other than understanding legalese.
>
> -Josh
>
> On Wed, Dec 3, 2014 at 12:42 AM, Patrik D'haeseleer <patrikd@gmail.com
> <mailto:patrikd@gmail.com>> wrote:
>
> On Tuesday, December 2, 2014 1:51:43 AM UTC-8, Josh W Perfetto wrote:
>
> Find a lawyer who already understand the IP landscape of your
> chosen application.There is no way you can understand this
> yourself in a reasonable amount of time (especially if you are
> innovating on the technology yourself)
>
>
> I would have to disagree with that to some extent. If you know how
> to do a decent literature search on a new field, you know how to do
> a decent patent search. www.google.com/patents
> <http://www.google.com/patents> is a useful tool - start out with
> some keyword searches, identify some related patents, check out the
> other patents listed under References Cited / Referenced By. Repeat.
> If you know some relevant scientific articles, you may be able to
> search for the first or last author under inventor name. Google
> scholar <http://scholar.google.com/> also allows you to search for
> related articles - including patents!
>
> Reading patents doe stake a bit of practice. The actual Claims
> section is super important and is typically written in legalese. But
> there is often a large background section that reads much more like
> (and is often copied directly from) a scientific paper.
>
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