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I have been working on an SW project that combines image processing and IMU data since 2019. (Mobile platform)

Unfortunately, a company got a patent on the same method that I have been working on and started selling their product last year (2020).

Seems like the only way is to make a free version of my software and get profit out of advertisements. Will it be illegal? Or is there a better way to avoiding patent infringement?

Open-sourcing is the last option and if I do that it will be to add one more line to my CV without getting any profit out of the project.

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    Your best bet is to show prior art, document that you shared or published the code before the date of their patent application. Or really, that anyone did. If you can't, then talk to your university ethics people about what you do about that situation - you don't want to be accused of plagiarizing their patent! – Harper - Reinstate Monica Jun 9 at 17:38
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    Combining image processing and IMU data does not seem a novel idea. Did they patent the combination of the two things in a generic manner or a very specific method to do so? First of all you have to read carefully the patent and understand what it covers exactly. If it is a very generic patent you may search for research papers trying to do similar things. You may find some prior art that you could use to invalidate the patent. Remember that here the devil and the lawyer is in the very small details. – FluidCode Jun 9 at 18:47
  • Note that "open source" does not imply "free of charge". You can give away your project for free without making it open source and you can make it open source and still sell it. You just need to distribute the source code and not just a compiled binary, but there is no reason you can't charge. The only issue (which can indeed be a problem) is that you cannot stop someone who buys it from you to then make a copy that they distribute for free. – terdon Jun 10 at 13:11
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You cannot use a patented invention without permission

A patent gives the owner exclusive rights to use it: not just profit from it. The only way you can use their patent is by licensing it.

You cannot make any version of the software that uses the patented method, free or otherwise. Technically, the software you have now is infringing even if you never release it.

If you had published your work before they filed for the patent, you can seek to have their patent invalidated due to the existence of prior art. If you had been using it privately prior to this some jurisdictions will allow you to keep using it privately.

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    @EricDuminil Indeed. If you look back at old documents around what the point of patents were and what could and couldn't be patented, among those things that couldn't be patented were: math and clothing. Math because it was considered a part of nature and clothing because it was so ubiquitous. But I can't imagine anything more ubiquitous in this day and age than software. There's more people writing their own code than people making their own clothes these days. And ultimately software is just math. – Shufflepants Jun 9 at 14:55
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    Do I read you (and the Wikipedia article on patents) right that it is even forbidden to privately implement the patented algorithm per se? That is, without ever using the resulting program (beyond, say, a test), let alone "taking advantage" from it? (Of course, detection and enforcement are a different matter -- strictly formal law question.) – Peter - Reinstate Monica Jun 9 at 15:13
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    @Peter-ReinstateMonica - The enforcement aspect is however crucial, because patent infringement is not defined to be a crime. The patent holder can request you to stop making infringing software, but if you haven't impacted their reputation or economic interests (for which they could request a remedy), they don't have much of a leverage over your private research actions. Worst case, you'll cease and desist when asked to. – Jirka Hanika Jun 9 at 16:03
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    @Shufflepants Do you have a citation for clothing not being patentable originally? It definitely is now, and as far as I can tell, it always has been. – user3067860 Jun 9 at 16:44
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    @Shufflepants - how ubiquitous something is has no relation to patentablity. Regarding your assertion about clothing - in the USPTO classification system Apparel is 2 and has been since 1923. And can you turn a bunch of transistors into a smart phone by adding equations? – George White Jun 9 at 16:55
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Software patents are illegal!

In all Western patent-laws, it is clearly stated that software is not patentable.

For Europe, here's the EPC, article 52:

https://www.epo.org/law-practice/legal-texts/html/epc/2016/e/ar52.html

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1 [and are thus not patentable]: (c) ... programs for computers;

This regulation exists in all patent laws of all European countries (which signed the EPC).

Having said this: The patent-mafia -- which includes the EPO (European Patent Office) -- still grants patents on software. Nearly all of them are nullified when they ever get tested in a court, because they are -- as said -- illegal.

However, the EPO doesn't have to reimburse the money they got for granting the illegal patent. They get money for every patent they grant. Even, if their action breaks the law, they have to face no negative consequences at all. Therefore, they have a very strong monetary interest in granting patents for everything -- even if it is clearly illegal and even if they know it already when granting the patent.

Also, the people working in the EPO are strongly discouraged to deny any patent: If they deny one, they must write an elaborate explanation of why they denied it. Their work is thus easier, if they just grant every patent.

The situation is similar in the USA: Patents on software are illegal, but exist by the thousands.

You have 2 choices:

  1. Ignore software-patents completely.

  2. Stop programming.

The topic is certainly very complex and there is much more to say -- too much for this place here. Read more about the patent wars here:

https://ffii.org/

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    The question does not ask about software patents, this post does not answer the question at all. – Nij Jun 10 at 5:45
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    The post starts with "I have been working on an SW project", so it clearly is a software-project and thus we're certainly dealing with software-patents here. But I already know: You argument like a typical patent-lawyer in this aspect: As soon as you can somehow use it in the real world, it is not a software-patent, but sth. else. That's nonsense, of course, but my time is too precious to discuss this again and again (I was fighting in the last patent wars when big tech and big lawyers tried to legalize software-patents in Europe and I'm totally fed up with this). Btw. I'm a DEV and a CEO. – Marco Jun 10 at 5:51
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    It might be different if the key of the patent is their algorithm and system not the SW itself? – C.O Park Jun 10 at 7:00
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    An algorithm, though, is not necessarily implemented in computer software. For example, when you use a pencil and paper to calculate the sum of 456 and 789, you are employing an algorithm without having anything to do with computers. So, if an algorithm is patentable, that isn't necessarily a software patent, but it would nonetheless prohibit unlicensed implementations of the algorithm in computer software. – phoog Jun 10 at 15:15
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    It is a much more complex issue than you present. Patents that cover software implementations are not illegal in the U.S. or the EPO. – George White Jun 10 at 16:47
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Answer to the question:

  • as there is a patent and you believe it to be valid, it is illegal to use the patented invention.
  • it is totally irrelevant if you make any money on the invention or not, the use is exclusively for the patent holder (or licenced users).
  • but, well, the bad consequences will occur if the patent holder finds out and actually cares.

I believe there are five parts, or maybe phases, to the question about patents. The steps are mostly consistent around the world although the details may vary.

  1. Getting a patent

There is a process where a person or a company may ask for and be given the exclusive rights to a patentable "invention" for a specific territory and a specific time. It includes describing what is to be patented and paying the relevant fees. The patent authority, granting the patent, does a bit of research including trying to check for patentability and finding "prior art", that is if this is already patented or perhaps generally known through a publication. In different countries this checking may be more or less thorough, I believe that the US patent office is known to be less strict than in some other countries. Once the patent is granted it is published. (Sometimes companies avoid creating patents as the secrets are then published).

  1. Using the patented "invention"

The idea is that the patent holder has the exclusive right to use the patented invention for a limited time. This is only relevant for the territory where the patent is granted, as example, a US Patent might not automatically be valid in France. No person, may use the patented invention without permission of the patent holder. There are a few exceptions to this, but the infringing party then is generally governments or international organizations (examples include some medicines, or the way AIS data is sent between ships).

  1. Stopping patent infringement

The patent holder will try to stop others from using the patented invention. This might start with a "stop and cease order" with wordings warning of dire consequences. Often the idea is to be frightening enough to not have to go to court. It might escalate to going to court and asking for damages. It is generally up to the patent holder to initiate this action, although at times authorities or border forces or such might do it on their own. Border forces are sometimes instructed to look for "counterfeit" brand products punishing the consumer buying these products.

  1. Going to court

The typical situation is that there will be less probability for a court proceeding the less money the defendant has. Sometimes in the US law system the civil layers will take cases on a percentage of the eventual penalties (this is not allowed in some jurisdictions), one reason why they aim for astronomical sums. But if the defendant has no money, the "ambulance chasers" will not take the case.

  1. Trying to disprove the patent

It is not uncommon for the patent to be proven "not valid" in the court process. If the defendant can show "prior art", the patent was invalid from the start. If it can be shown that the patent in a specific case was not relevant for the actual usage it will also be rejected by the court.

So, you might want to take your chances. Maybe the patent can be proven to be non-valid if you can find prior art? If not, it will be illegal, and could become costly.

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