Indy Telecom & Industrial Media

As a patent attorney who deals with computer software, I have become somewhat inured to hearing that my entire profession is evil and that the IP system is nothing but sand in the gears of industry. Today, however, I ran across something new: apparently, there is a misconception that even knowing about patents is somehow dangerous, and should be avoided. Case in point: this Groklaw article about the first patent lawsuit filed based on the use or sale of the Linux operating system. Overall, the article was an exercise in tracing connections between Microsoft and the current plaintiffs. However, the following quote caught my eye:

Here’s the patent, for those who can look at it without risk. If in doubt, don’t.

The quote is written as though patents were radioactive, which is simply not the case. At one point, it was true that knowledge of a patent gave rise to an affirmative duty of due care to avoid infringement, and that failure to satisfy that duty could lead to enhanced damages in the case of litigation. However, at this point, that is simply false. The Federal Circuit, which has appellate authority over patent cases has clearly eliminated that duty and stated that “proof of willful infringement permitting enhanced damages requires at least a showing of objective recklessness” (In re Seagate)(emphasis added). This means that, unless there is an objectively high likelihood that you are infringing a patent, you can’t be found liable for enhanced damages based on willfulness. Also, my thought is that if there is an objectively high likelihood that you infringe a patent, it’s still better to find out yourself by reading the patent (so you can design around the patent or take other protective actions), rather than waiting for the patent holder to sue you and having to pay an attorney to defend you from their slam dunk infringement case.

The take home lesson from all this? There is no good legal reason to avoid patents and, if you happen to read one which is relevant to your life, you can save yourself a huge amount of grief by dealing with it proactively, rather than waiting till the patent holder drags you into court.

As a note, I normally blog about the law surrounding data privacy and information security here. Since I already have a blog devoted to those topics, my posts here will cover anything else that comes to mind.