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Topic # 148544 23-Jun-2014 08:51
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Hello,

I have been working on some software for a few years now but just recently found that somebody else has been granted a patent a few months ago in the US which makes multiple claims which is like reading a description of my own software. As you can imagine this kind of blows up my plans. (I should probably add that I have not distributed it online before).

Presumably this makes it impossible for me to distribute my software in the US - but my question is if I distributed it online where someone in the US, or one of these countries which has a deal with the US on software patents (unfortunately that seems to be most of the world), could potentially access and download it, how is this managed? Do I have to put a disclaimer somewhere "not available to US residents"? Anyone else in this position? How does this work? Are NZ based software developers really protected from being sued by US patent holders?

What is the current state of the software patent law? There are rumours they are trying to overturn it with the TPPA. After reading through various articles online, I get the feeling the current wording is still vague, and perhaps is only really designed to stop patents on commonly used open source software?

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  Reply # 1072404 23-Jun-2014 09:59
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No idea. There are lots of ifs and buts. First of all, the patent may already be indefensible due to prior art somewhere else. Also, the patent may be indefensible due to some other random reason. It is not worth forming a strong opinion about it without legal advice.

In the meantime it is important not to acknowledge the patent or create any documentation that implies you acknowledge it. This could include personal email unless it is (legally privileged) communication with a lawyer.

Source of this information: Working for a US company and following the standard legal advice in an environment where there was constant possibility for these issues to arise from time to time. I don't know what this means in practice in an US vs NZ context.

The implication was in these circumstances to some extent it is better not to create any record that implies you are even aware of a patent because unintentional bad wording could come back to bite you in a bad way. Being aware of the patent or discussing potential infringement iirc is not an issue in itself but it could become part of the story.

There was a good news US Supreme Court decision a few days ago which may or may not be relevant to your circumstances. Either way it could be modified slightly by subsequent judgements but it is a nice start.

None of this really answers any of your questions. I'd suggest joining the Computer Society. They have a deep understanding and experience of these issues and lobby the government to get them sorted out. And/or get an initial consultation with a legal professional if you are in a position to afford it.

None of that should scare you off continuing to develop and conduct your business.

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  Reply # 1072541 23-Jun-2014 12:48
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Unfortunately you will need to get proper advice from a lawyer which will probably be expensive. There are a number of local firms that deal with this stuff AJPark, BuddleFinlay etc.

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