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I wrote an application that helps you to save energy. Actually it is very simple. I check the current location of the phone and I make some changes to the configuration like "sound off, dark display, wifi off...", depending on the location of the user. Sony just released a new phone including one of my apps features (actually they have an extra entry in the options menue for this). I have no idea whether there is a patent for this function.

Can I even release this app without risking to be sued some day?

I'm very confused about the whole "patent" situation.
I'm about 20 years old and I can't even write a simple app, without investing lots of money for a lawyer.

Edit: I don't ask for legal advice. I wanted to receive an overview about how developers see or handle the whole situation.

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    That's the point of software patents, to stifle competition and innovation. I once worked for a company that held an actual patent on a "method for answering the phone". BS, but it kept less well healed competitors out of their telephony niche.
    – jfrankcarr
    Mar 12, 2013 at 13:34
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    There would certainly be bigger fish to fry, notably the publishers of Settings Profiles, Tasker, Locale and a whole host of others.
    – Blrfl
    Mar 12, 2013 at 14:21
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    Ask an IP (intellectual property) lawyer in your jurisdiction. Asking about how developers in general handle the problem is a start, but not that useful because the laws where we live are not necessarily the laws where you live.
    – msanford
    Mar 12, 2013 at 14:21
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    FYI, I'd be more worried about the fact that you'll be competing against apps like Llama and Tasker than Sony including similar functionality in one of their phones (unless of course you're the author of one of those apps).
    – Tacroy
    Mar 12, 2013 at 15:57
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    When number of inventors exceed number of ideas, they may fight over the ideas.
    – S.D.
    Mar 13, 2013 at 6:58

7 Answers 7

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I am not a lawyer. There's a special word for people who take anonymous legal advice from the Internet - "fool".

Do a risk analysis -

a) you don't write the software.

outcome: Nothing.

b) you do write the software.

outcome #1: Sony doesn't notice and/or doesn't care. This might be a case of the "shallow pockets" defense - in their eyes you're not worth the effort to sue.

outcome #2: Sony sees your work and is impressed by it. They may offer to purchase it from you. (That might be cheaper than suing you then coding it up themselves)

outcome #3: Sony sees your work as an infringement that they must prevent. Step #1 (in the US, not sure about other countries) would be to send you a "cease & desist" letter. It's cheaper than suing, and chances are it's all they'd need to get you to stop.

Outcomes #1 and #2 are not harmful to you. Outcome #3 would probably mean you'd simply have to stop selling your software. You have to decide how likely #3 is and whether or not you can afford to stop.

My recommendation is to go ahead and write the software. You have much to gain (experience, reputation, possibly money) and little to lose. It's difficult to get the attention of large companies when you actually want it, so I'd expect outcome #1.

Good luck!

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    Even if I was a lawyer I'd still put that at the top!
    – corsiKa
    Mar 12, 2013 at 21:58
  • Outcome #4: Sony sues you for money.
    – Brian
    Mar 13, 2013 at 12:50
  • @Brian - that comes after Outcome #3. Call it #3a. The letter is just the first step in the process.
    – Dan Pichelman
    Mar 13, 2013 at 13:07
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    @DanPichelman: But they won't necessarily be satisfied with having you stop selling. They might also require you to pay them.
    – Brian
    Mar 13, 2013 at 13:09
  • What Brian says is true, but probably only if your product explodes in popularity. Similar to how Google has to pay fees for each Android phone sold.
    – Phil
    Mar 13, 2013 at 13:33
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I am neither a lawyer nor an accountant.

What I have done is to register an LLC. You can register an LLC in your state for relatively cheap (hundreds) and you can set it up so that income goes directly to yourself and is taxed as your regular income (it won't be double-taxed like in a normal corp).

The LLC will be liable for any suits brought against it, but you won't be held personally accountable, so if you get sued you can choose for the LLC if you want to fight, settle, or declare bankruptcy and it won't disturb your normal finances.

I think everyone should do this. Well-known patent troll Intellectual Ventures creates shell companies to protect its assets against counter-suits; we indie developers should all have non-shell companies to protect ourselves from patent trolls.

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    +1, and I'm surprised nobody else is offering this advice. This is exactly what limited liability corporations were originally designed for.
    – Jules
    Mar 12, 2013 at 18:24
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    @Jules - Maybe they aren't as confident as victor that they understand the ins and outs of exactly when a LLC shields one from liability.
    – psr
    Mar 12, 2013 at 19:01
  • @psr - It depends upon where you live. in Australia, the director(s) of a company can only be sued if they have show gross negligence or malfeasance. Shareholders and employees cannot (of course) be sued.
    – dave
    Mar 12, 2013 at 23:04
  • dave: yes, that's probably psr said what that. LLC laws vary country-to-country, and Goot gave no indication on his residence.
    – mikołak
    Mar 13, 2013 at 7:24
  • @psr I'm not totally confident about it either! I think we can both agree the absolute best thing to do is to consult a professional. But having said that; I do believe forming an LLC is, in all cases, far safer than just putting it out there (especially if you are worried about lawsuits).
    – Victor
    Mar 13, 2013 at 12:14
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(It is customary to preface legal advice on the internet with a disclaimer that one is not a lawyer and you should consult a professional. So here it is: I am not a lawyer. You should consult a real lawyer to be sure.)

Anybody can bring suit against anyone else, for pretty much anything. Winning such a lawsuit eventually is a different matter, but where the litigant has much, much more money than you, in practice they can force you to negotiate a settlement because you can't afford the cost of keeping your legal defense going. (Yes, this is blatantly unfair, which is why tort reform is such a big issue nowadays.)

As for patents: yes, there can be patents on the feature you have built, and if you infringed them, you could be sued. Since large companies usually patent features left and right before introducing a new gadget, it is probable that there are such patents. Unfortunately, searching for patents in order to determine whether something infringes or not is very difficult and time-consuming - neither the patent office nor honest private inventors are usually able to say with any certainty whether a proposed new product infringes. In fact, an inventor has an incentive not to search too hard, since having had knowledge of related patents can be interpreted as willful infringement and cause even higher damages. (This is also a very broken area of law, and unsurprisingly, patent reform is also a hot issue.)

In practice, as long as you publish one little app and make a modest income from it, it is possible in principle, but not exactly to be expected that you will be sued. If you ever make it really big, then the risk goes up dramatically, as any trade publication will show you.

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Release the App.

Because you already coded it, the most you can loose (from a lawsuit) is the generated income from the App. Plus they will likely send you a "Cease and Desist" prior to taking any legal action.

Basically worst case scenario is: you are back where you started now, with no revenue. (I would doing this before investing any more development time into your app).

Also Check out Ask Patents

Ps: I am not a lawyer.

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  • Yeah, that's what I was thinking, they will most likely start with a cease and desist letter.
    – Bratch
    Mar 13, 2013 at 0:11
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    Couldn't they sue you for the money they lost from you diluting their brand?
    – electron_avalanche
    Mar 13, 2013 at 0:23
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In the worst case, several things can happen:

  • You could be sued, but that is very unlikely as a first step.
  • You can receive a cease and desit letter. At least here in Germany this can be very costly. You have to pay the issuer's attorney's fees which can be a couple thousand euros. I don't know how this works in other countries, but most have a similar system.
  • You can be forced to "buy" a license for the patent (either by coercing you into a settlement, or directly if the legal system allows it).

What makes this very complicated is that several legal systems apply: The one of your country, presumely American, the one of where Sony resides / chooses to file suit in (USA, Japan, who knows?) and possibly the ones of countries you sell your app in, if you violate any patents held there. It's basically impossible to protect yourself 100%.

What you can do is register an LLC or similar, as Victor said. If you can afford it, you should also try to talk to a lawyer, although I realize this is overkill for most small developers (I certainly wouldn't be able to affort it, and wouldn't want to blow my meager app earnings on one).

One thing you should definately look into is to get legal expenses ensurance. Again, I only know the situation in Germany, where it is pretty affordable, and they'll pay all your attorney fees, but I something similar exists in other countries, as well.

But as Morons said, don't let the possibility of patent violation deter you. The chance of getting into trouble is very small and nobody wants to waste time and money chasing "small fish". The realistic worst case is that they'll ask you to take down your app.

(Oh, and I'm not a lawyer and everything I said is potentially wrong, so don't rely on it.)

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The situation with software patents is complex, and the laws are arguably broken (and vary from country to country), but the best thing you can do is to follow the same route everybody else does:

Don't even try to figure out if you're going to be infringing someone else's patent. You're presumably not an IP lawyer, so you're unqualified to do the required research. If you do any kind of research, and conclude incorrectly that you're not infringing, the mere fact that you're familiar with the patent in question may open you up to "willful infringement" charges, where the penalties can be much higher.

If you think that some idea in your product is patentable, then engage a patent lawyer to help you prosecute the patent application, and they (along with the patent office) will let you know if you're infringing anybody else's patent.

If you're giving the software away, you're probably pretty safe With the possible exception of a crazy lone-inventor type, no company is going to want to go through the expense of suing if there's nothing to recover.

If you want to sell anything, you need a way to shield yourself from liability This varies a lot from locale to locale, but there is often a low-cost way to create a corporate entity that will hold the assets and handle claims against the business, while shielding your personal assets. In the USA, this is typically an LLC or a C-corp, but there are lots of options.

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This is an appropriate situation for some basic game-theoretical analysis.

First, you should ignore anyone advising you to not worry about it because you're unlikely to get sued unless you're successful. This is absolutely false. You can and will be sued if you present a strategic threat to someone. The case of FlightPrep vs RunwayFinder is typical.

Despite the fact that RunwayFinder had no money whatsoever and the author gave away his hobby project software free of charge, FlightPrep still sued him out of business.

http://www.techdirt.com/blog/?company=runway+finder

RunwayFinder did try to fight back, btw, but found the costs staggering, even though donations were solicited to help defray legal expenses. If you care to see how that strategy actually plays out in the real world, consult Google, it's well documented.

Assertions on this topic that begin citing probabilities or risk analysis are entirely bogus. First, what methodological process was used to collect the data that any such risk-based analysis is founded on? Most companies and products patent trolls destroy never generate any court records because things never get that far. The majority of companies that have met their fate at the hands of trolls leave no official record to be accumulated into a meaningful statistic.

Consider also that trolls engage in mass threats via attorney letters. What are you going to do if you get one of these? Ignore it? In fact you'll compelled to answer it, which is to say you'll be compelled to start spending money on lawyers. If a lawsuit is merely filed, a relatively cheap thing to do, in some far flung courthouse- typically in the Eastern district of Texas :

http://www.technologyreview.com/news/405259/a-haven-for-patent-pirates/

you'll fold because while the other side may or may not be ready to take you to trial, you know you can't afford to defend yourself in some far distant state having been served with documents you can barely read.

By similar analysis, as soon as a troll gets a reputation for going after small developers, all other small developers will be forced to take them seriously- a fact that isn't lost to trolls. This is similar to a drug dealer capping, say, a ten year old he finds selling on his turf. The 10 year old wasn't a real threat and had no business to speak of, but all the other drug dealers now take him seriously.

Just as the possible threat of a lawsuit is sufficient to make you think twice about entering the market, the mere sight of just one dev in your product space being sued is enough to make anyone fold. Those who stay must be staying because they're making money and now the troll knows who to go after in earnest.

If you lose a patent lawsuit in the US, you also lose your rights to sell that software anywhere the US has the typical international IP agreement with because while a country may not recognize foreign software patents, they all agree to enforce any IP judgments issuing from a reciprocal nation's jurisdiction. So if you're sued in the US, you can't run to the EU at a future time with your software and start making money, you effectively lost that right when you were sued in the US for selling a product which infringes by US law. IN the eyes of the law, your software is someone else's property and you're trying to sell the stolen goods in the EU. The EU authorities are obliged to pursue.

One other note. The US Supreme Court decided in 2007 that creating software in the US and shipping a "golden master disk" to another nation's jurisdiction did NOT constitute infringement if the software was never sold here:

http://www.siliconvalleywatcher.com/mt/archives/2007/04/supreme_court_n.php

So it appears to be safe to write software here and then sell it there.

What game theoretical analysis suggests to us then is, just avoid the US market. Avoiding the US market for most app developers has no real downside. Although theoretical profits are left on the table, if your app was going to make you a millionaire in the US market, it's probably going to do the same for you in the combined markets of EU NZ and other developer friendly markets.

Publishing software in the US is a kind of Russian roulette. If you care about your future, then you don't play. If you're immune to fear of death for some reason, then by all means, pull the trigger. There is just no economic reason to conduct business in the US given the finality of a judgment against you. In effect, the threat of a lawsuit issuing from any old IP lawyer functions just like a letter from some medieval king before the Magna Carta, decreeing you to be an enemy of the crown. There will be no trial. There will be no appeal. You're just dead, 'cause you are, 'cause someone (the troll) said something to someone (the court). Just cuz.

You can make all the money you need and more selling into the EU, NZ and other developer-friendly nations.

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