Source code is not required to work a patent but sufficient information for a person skilled in the art is a requirements for a patent.
> The second simple fact is that the common practice in the software industry is to not read patents, so this means that anything that really 'infringes' had to be independent invention.
That is a rather sweeping statement. Does your experience include cell phone technologies?
> I don't know what country you are from, but there is no such thing as 'prior use rights' in the US patent law.
Laws like this exists in many countries and under different names. In Germany this is known as "vorbenutzungsrecht" and German patent law has influenced much of European and some Asian patent laws. At the EPO this is implemented in Art 70 (4) EPC
It appears that the US has something similar called "Prior user rights":
35 U.S.C. 273:
> (and now that we are 'first to file', rather than 'first to invent', even that may not be valid)
I was told the US moved to "first inventor to file" which is different from "first to file".
> The problem is that when patents are being evaluated by the court in terms of infringement, they tend to read the claims in broad terms
Are you referring to Marksman hearing? And how do you find it tends to be broad?
> And the sheer cost of defending against a patent infringement suit can be crippling
You can get insurance for such cases.
> As a result, the vast majority of software patent lawsuits get settled without going to court.
Out of court settlement is preferred to keep cost down and to make sure the settlement is not made public. I was not aware that bizarre judges was a factor in this.
Copyright © 2017, Eklektix, Inc.
Comments and public postings are copyrighted by their creators.
Linux is a registered trademark of Linus Torvalds