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Date: Mon, 19 May 2014 11:43:15 -0700
Message-ID: <CAAS2fgRhEJUT4JEXtZSqnNnBV=tLFD4qjLFOQpeA-V2jA_UtHg@mail.gmail.com>
From: Gregory Maxwell <gmaxwell@gmail.com>
To: Mike Hearn <mike@plan99.net>
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Cc: Bitcoin Dev <bitcoin-development@lists.sourceforge.net>
Subject: Re: [Bitcoin-development] patents...
Precedence: list

On Mon, May 19, 2014 at 8:09 AM, Mike Hearn <mike@plan99.net> wrote:
> The first rule of patents is you do not go looking for patents. US law is
> written in a really stupid way, such that if you knowingly infringe, dama=
ges
> triple. Because America uses the patent office as a revenue source,

You have received outdated advice on this point. In Re Seagate
(http://patentlyo.com/patent/2007/08/in-re-seagate-t.html) this
precident was over-turned (and has subsequently been upheld in other
cases). Avoiding willfull infringement no longer requires paying off a
patent attorney to get a freedom to operate review.  This isn't to say
that reading patents is always productive now:  They're often nearly
inscrutable (especially to people without substantial patent reading
experience), and you may discover potential infringement that creates
more work for you to sort out (especially since people without patent
experience tend to read patents much more broadly than they actually
are).

There are other defensive approaches which are interesting than hoping
to use patents as a counter attack: For one=E2=80=94 filing a patent gets t=
he
work entered in the only database that USPTO examiners are
_guaranteed_ to consult when doing a prior art search, so it may have
a fighting chance of precluding someone else patenting the same
material later (they may also search the internet and use other
resources, but they're guaranteed to consult the existing patents and
applications). Patents can also be used defensively as leverage in a
licensing negotiation: Without your own patents you don't get invited
to the negotiating table at all with someone else who may hold patents
in a space that you're working on.  These are somewhat thin advantages
so great care is required to make sure that things are setup so that
badness cannot happen later when inevitable changes of ownership
happen.