united-states patents
Can you safely do anything without infringing patents?
<p>It seems like anything non-obvious can be patented, and even private use of patented processes is illegal. Can you do anything with assurance that you aren't infringing a patent? You could read through all current patents, but (a) that would take way to long and (b) what if there's a patent for a method of searching patents to endure an activity is not infringing, which describes the search method you were using?</p>
<p>Could someone walk up to me while I'm typing this and sue me for infringing their patent on a method for accelerated typing on a smartphone? (No they couldn't, because I'm at home and they would be trespassing, but assume I'm in a public place.)</p>

<p>Negligent patent infringement is — obviously — not a criminal matter, and will only become one of civil nature if a proper patent infringement notice, pursuant to <a href="https://casetext.com/statute/united-states-code/title-35-patents/part-iii-patents-and-protection-of-patent-rights/chapter-29-remedies-for-infringement-of-patent-and-other-actions/section-287-limitation-on-damages-and-other-remedies-marking-and-notice?ssr=false&amp;resultsNav=false&amp;tab=keyword&amp;jxs=#pnull" rel="nofollow noreferrer">35 U.S. Code § 287</a>(b)(2), <em>et seq</em>., is duly served on the infringer, and the infringement continues thereafter. (Although even in the absence of it is not legal, but no action is enforceable without)</p>
<p>Therefore, as a practical matter, they couldn't — unless one continues with infringing conduct duly served proper notice on unless the infringement is done knowingly and willfully.</p>
<p>Additionally, &quot;non-obvious&quot; is a term of art; its case-law description gives broad discretion to patent examiners, supervisory patent examiners, the PTAB as well as the Federal Circuit and the U.S. Supreme Court — as the case stands — to decide what is &quot;obvious&quot; and what isn't. For example, there is no case law defined upper limit of how many piece of prior art may be considered together when arguing they, combined, would make a system, method or computer program product obvious. The limitations on this generally require, for e.g, that the combination have an objective; in the absence thereof, an applicant may argue that it would not have been obvious.</p>
<p>Lastly, it is not everywhere where there is no exception  for private use; the U.S. has no such exception though.</p>

<blockquote>
<p>It seems like anything non-obvious can be patented, and even private
use of patented processes is illegal. Can you do anything with
assurance that you aren't infringing a patent?</p>
</blockquote>
<p>Only buy other people's inventions and refrain from inventing your own, unless you are recreating something you know to be in the public domain (which is pretty much any publicly known idea from 2001 or earlier).</p>
<p>It can be a little harder if you run a business that uses any sort of innovative business process, but ordinary activities of daily life, or ways of operating a business that you know to have been in existence for a long time, are risk free.</p>
<p>Realistically, not many people invent things or create innovative processes in their daily lives. This is behavior that very few people engage in at all.</p>
<p>Also, keep in mind that patent laws are <a href="https://www.wipo.int/patents/en/" rel="nofollow noreferrer">not self-executing</a>.</p>
<blockquote>
<p>In principle, the patent owner has the exclusive right to prevent or
stop others from commercially exploiting the patented invention. In
other words, patent protection means that the invention cannot be
commercially made, used, distributed, imported or sold by others
without the patent owner's consent.</p>
</blockquote>
<p>The patent owner can order you to cease and desist from using the patent, and can (with the more limited kinds of remedies available for unintentional infringement) sue you for damages for a time period equal to the statute of limitations prior to when the lawsuit against you for patent infringement began (which is six years in the U.S. pursuant to 35 U.S.C. §286). Damages are usually a function of either lost profit or the fair market value of royalties that could have been earned.</p>
<p>But, in the case of small scale unintentional infringement for personal use of some invention or innovative process protected by patent, the patent owner will often not discover the infringement and sue, and the patent owner will often not find it to be economic to sue (patent infringement lawsuits are expensive) even if your use is discovered (especially if you comply with a cease and desist request once you learn that you are infringing). A patent infringement lawsuit is literally a federal case, and if you've unknowingly infringed by creating five infringing widgets that the patent owners sells for $10 each for your garden that you grew flowers in for your personal aesthetic enjoyment, the damages wouldn't justify the cost and trouble of bringing a lawsuit.</p>
