Who’ll Sue Who How?

Imagine a pro golfer being sued for using a certain ball. He isn’t sued because its design breaks PGA rules, but instead because the owner of a patent covering the creation of golf balls believes that this particular ball violates their patent. Ernie Els appears to be safe so far, but as SCO v. AutoZone demonstrated a couple years ago, anything is possible.

It all hinges around a very clear section of US patent law:

• “Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”

It doesn’t get much more blunt than that. Use a product that infringes on a patent, and you’ve infringed on the patent yourself. Typically, litigants haven’t gone after end users because there’s more to be gained from lucrative licensing agreements and court settlements with manufacturers (think NTP and RIM) than from making customers hate you with an all-consuming passion. But as competition from both legitimate IP enforcers and patent trolls heats up, there’s going to be increased opportunity for retailers and end users to get dragged into the patent fray. 

Luckily, there are a couple easy ways to protect yourself. First, you can become intimately aware of all the patents that apply to every product you purchase and any legal issues that surround those patents. (A Ouija Board or crystal ball may come in handy for this task.) Then buy accordingly. Alternatively, you can stop buying any products whatsoever and curl up naked in a fetal position under your desk.

But what the heck–maybe this is all going to work out for the best of everyone. Certainly the increasing number of gleeful emails I get from companies pursuing IP patent lawsuits seem to imply as much.  

For more–and more knowledgeable–information on the topic, I suggest Philip Brooks’ Patent Infringement Updates blog. It’s updated frequently and covers a wide swath of the patent landscape.  And given what’s going on out there, it’s information you should know.