It really depends on the specifics of the patent. Patents are usually very technical documents and their breadth tends to be much narrower than what non-patent lawyers assume.
In any event I will not going to examine Digg's particular patent because I do not want to get PG in trouble. But, as I said patents tend to be much narrower than non-specialists assume, so if someone mentions a patent, you should not panic but get a competent patent lawyer to determine what the exact scope of the patent is. Usually, it is not as bad as it seems and often you can get around it.
It's helpful to have people commenting who know what they're talking about. Question: what are some examples of ways that "often you can get around it"?
The scope of the protected invention of a patent is supposed to be defined very precisely by the claims (and indirectly by the specification, procurement history, etc.) If you have a very precise definition of what is protected, you can often find an alternative that is not protected.
Of course, I am speaking in generalities and individual cases may vary, but when people come to me with patent problems I often find a way to avoid a patent.
When non-specialists talk about patents they usually interpret the patent coverage based on the title or the summary, but the actual scope of protection is defined by the claims and it is usually much more narrow than the title suggests.
That reminds me of something I've always wondered. Suppose a patent has claims 1 thru 5. Does an invention have to copy all of them, or only one of them, in order to fall in the scope of the patent? What if you come along with a product that does, say, 1, 2, and 3, but not 4 or 5? Have you infringed the patent? Basically I'm asking whether the implied boolean operator combining the claims is AND or OR.
I expect you'll say what lawyers always say, which is "it depends", but it's my question and I'm sticking with it :)
Heh - no real case, just general curiosity. But if you're still working in this area, you might want to put contact info in your profile. It wouldn't be surprising if someone around here made use of it.
Whether it is fringing depends on the decision process of the patent troll owning the patent:
1. Does the infringing party have a stash of money to pay for a quick settlement but not too much money that they could send a battalion of lawyers to countersue?
2. Is the infringing party a strategic competitor?
3. Is the infirning party holding a stash of patents of their own that they can sue you with?
4. Is suing the infrigner worth the risk of losing the suit and therby possibly invalidating the patent and therby making it worthless? You got to know when to save your ammunition for the real fight.
By these criteria HN and Reddit probably do infringe but is not a concern of whoever is holding the patent.
Fact of the matter is you can sue anyone for anything if you can afford the lawyers to do so.
IANAL, but wouldn't websites like bash.org be prior art for a “click a button to vote up a story” functionality? I'd be interested to see the exact wording, if anyone can find a link to the patent in question.
If that's the patent in question, it's so specific as to be useless.
The first claim, which all other claims depend on, only claims the invention when
1) The voting patterns are being displayed in a "swarm interface"
2) The "thickness of a line" is used for visualizing the number of votes
I don't believe that any of the modern sites use a swarm interface at all, and if someone wanted to show a swarm interface, by using something other than the thickness of a line for the visualization, you've sidestepped the patent.
It's hard to believe someone paid good money for this.
