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.

    --
    -- You received this message because you are subscribed to the
    Google Groups DIYbio group. To post to this group, send email to
    diybio@googlegroups.com <mailto:diybio@googlegroups.com>. To
    unsubscribe from this group, send email to
    diybio+unsubscribe@googlegroups.com
    <mailto:diybio%2Bunsubscribe@googlegroups.com>. For more options,
    visit this group at https://groups.google.com/d/forum/diybio?hl=en
    Learn more at www.diybio.org <http://www.diybio.org>
    ---
    You received this message because you are subscribed to the Google
    Groups "DIYbio" group.
    To unsubscribe from this group and stop receiving emails from it,
    send an email to diybio+unsubscribe@googlegroups.com
    <mailto:diybio+unsubscribe@googlegroups.com>.
    To post to this group, send email to diybio@googlegroups.com
    <mailto:diybio@googlegroups.com>.
    Visit this group at http://groups.google.com/group/diybio.
    To view this discussion on the web visit
    https://groups.google.com/d/msgid/diybio/fb786ee4-5d6f-4836-9d4d-b8ed483fbb54%40googlegroups.com
    <https://groups.google.com/d/msgid/diybio/fb786ee4-5d6f-4836-9d4d-b8ed483fbb54%40googlegroups.com?utm_medium=email&utm_source=footer>.

    For more options, visit https://groups.google.com/d/optout.


--
-- You received this message because you are subscribed to the Google
Groups DIYbio group. To post to this group, send email to
diybio@googlegroups.com. To unsubscribe from this group, send email to
diybio+unsubscribe@googlegroups.com. For more options, visit this group
at https://groups.google.com/d/forum/diybio?hl=en
Learn more at www.diybio.org
---
You received this message because you are subscribed to the Google
Groups "DIYbio" group.
To unsubscribe from this group and stop receiving emails from it, send
an email to diybio+unsubscribe@googlegroups.com
<mailto:diybio+unsubscribe@googlegroups.com>.
To post to this group, send email to diybio@googlegroups.com
<mailto:diybio@googlegroups.com>.
Visit this group at http://groups.google.com/group/diybio.
To view this discussion on the web visit
https://groups.google.com/d/msgid/diybio/CA%2BL%3DET1XMGtB5cNhvpBe6vh7k7UW9iCGdt3kTsOeNN36%3DE5P1w%40mail.gmail.com
<https://groups.google.com/d/msgid/diybio/CA%2BL%3DET1XMGtB5cNhvpBe6vh7k7UW9iCGdt3kTsOeNN36%3DE5P1w%40mail.gmail.com?utm_medium=email&utm_source=footer>.
For more options, visit https://groups.google.com/d/optout.

--
-- You received this message because you are subscribed to the Google Groups DIYbio group. To post to this group, send email to diybio@googlegroups.com. To unsubscribe from this group, send email to diybio+unsubscribe@googlegroups.com. For more options, visit this group at https://groups.google.com/d/forum/diybio?hl=en
Learn more at www.diybio.org
--- You received this message because you are subscribed to the Google Groups "DIYbio" group.
To unsubscribe from this group and stop receiving emails from it, send an email to diybio+unsubscribe@googlegroups.com.
To post to this group, send email to diybio@googlegroups.com.
Visit this group at http://groups.google.com/group/diybio.
To view this discussion on the web visit https://groups.google.com/d/msgid/diybio/547EFBBD.2040906%40cathalgarvey.me.

For more options, visit https://groups.google.com/d/optout.