patents
Is it illegal to implement a patented algorithm or method and take advantage from it?
<p>I have been working on an SW project that combines image processing and IMU data since 2019. (Mobile platform)</p>
<p>Unfortunately, a company got a patent on the same method that I have been working on and started selling their product last year (2020).</p>
<p>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?</p>
<p>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.</p>

<h2>You cannot use a patented invention without permission</h2>
<p>A patent gives the owner <strong>exclusive</strong> rights to use it: not just profit from it. The only way you can use their patent is by licensing it.</p>
<p>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.</p>
<p>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 <a href="https://en.wikipedia.org/wiki/Prior_art" rel="noreferrer">prior art</a>. If you had been using it privately prior to this some jurisdictions will allow you to keep using it privately.</p>

<p>Answer to the question:</p>
<ul>
<li>as there is a patent and you believe it to be valid, it is illegal to use the patented invention.</li>
<li>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).</li>
<li>but, well, the bad consequences will occur if the patent holder finds out and actually cares.</li>
</ul>
<p>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.</p>
<ol>
<li>Getting a patent</li>
</ol>
<p>There is a process where a person or a company may ask for and be given the exclusive rights to a patentable &quot;invention&quot; 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 &quot;prior art&quot;, 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).</p>
<ol start="2">
<li>Using the patented &quot;invention&quot;</li>
</ol>
<p>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).</p>
<ol start="3">
<li>Stopping patent infringement</li>
</ol>
<p>The patent holder will try to stop others from using the patented invention. This might start with a &quot;stop and cease order&quot; 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 &quot;counterfeit&quot; brand products punishing the consumer buying these products.</p>
<ol start="4">
<li>Going to court</li>
</ol>
<p>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 &quot;ambulance chasers&quot; will not take the case.</p>
<ol start="5">
<li>Trying to disprove the patent</li>
</ol>
<p>It is not uncommon for the patent to be proven &quot;not valid&quot; in the court process. If the defendant can show &quot;prior art&quot;, 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.</p>
<p>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.</p>
