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There's breaking news about Zynga being sued over some very obvious implementations. This is making me think that the game industry is full of landmines to be stepped on at every turn. What input does everyone have to minimize the damage?

Latest:
http://www.gamasutra.com/view/news/36657/Zynga_Sued_Over_Prize_Redemption_Patents.php

Another example:
https://w2.eff.org/patent/wanted/patent.php?p=sheldon

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Software patents are horrible things. And this is just one of the reasons why. Would Zynga even be sued if they weren't worth a billion dollars? –  thedaian Aug 19 '11 at 20:30
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Short answer - you can't. Welcome to the Brave New World... –  Cyclops Aug 19 '11 at 20:36
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Well this is mostly legal problem. But in Europe the patents are a bit more scrutinized and we don't have this pure software patent lawsuit storm that is becoming US favorite pastime. You could explore creating a dummy company that is based outside US, if your game design allows it. Maybe then the patent trolls will have hard time chasing you, but you will enjoy such pleasantries as VAT and high corporate taxes. –  Daniel Iankov Aug 19 '11 at 20:53
    
Cyclops and Daniel, your comments are answers, @Daniel you're mostly wrong but I can't vote you down. The EPO is more strict and patent shell companies are not common like the US, but software patents do exist on national and supra-national levels in Europe. –  user744 Aug 19 '11 at 21:02
    
@Joe, you may be right, but I wasn't going to post a two-word answer, and didn't want to spend the time writing a detailed answer. :) –  Cyclops Aug 19 '11 at 21:04

1 Answer 1

up vote 33 down vote accepted

There is no way to write software to avoid infringing patents, period, in the US right now. There are steps you can take to mitigate the problem.

  • Get a relationship with a lawyer. They don't have to be on your staff. They don't even have to be on retainer. But scout some out ahead of time and know who you can trust if you do get an infringement notice.
  • Don't educate yourself about specific patents in your field unless you intend from the start on licensing them. Knowingly infringing a patent carries more damages than ignorantly infringing one. Whatever you're doing, it violates patents; only worry about specificity when it happens.
  • Don't build up a defensive patent portfolio. It'll just waste your time and money. The nature of a patent troll is that they own many/broad patents, threaten indiscriminately, and don't actually do anything so won't counter-infringe. The MAD strategy defensive portfolios are based on only works if you're capable of destroying the other company, and the other company is rational. Unless you're EA/Activision/etc you can't do the former, and if you're up against a patent troll you can't count on the later. (There are other reasons to build up patent portfolios, like if you want to inflate your company's perceived value to investors - but this road only leads to your patents being used to troll other people in the future.)
  • Don't lose sleep over it. Zynga's getting sued. Would you swap your company's financials with Zynga's despite that? I sure would. They are getting sued because someone wants a piece of that gigantic Zynga pie, not because there's a company somewhere actually disadvantaged because Zynga did not license their patent. If you don't have fat stacks of cash, most of those organizations won't come knocking.

Oh, and

  • Don't be a dick and copy someone else's game wholesale and try to undercut them just because it's probably legal. You'll still be a dick. Take good ideas when you find them, but be open and honest about your influences, and make the game you want to make because it's the game you think is important to make, not because it's the game you think you can get away with.
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Awesome and bare-to-the-bones honest answer. Here is my +1 sir. –  pek Aug 19 '11 at 23:21
    
Absolutely fabulous answer. Thank you much! –  FriendlyDev Aug 21 '11 at 5:29
    
For the record, I'm going to take your advice and never educate myself about patents. I'm guessing this is common practice among developers now. A pity, because that keeps the problem from being better exposed by us who understand the industry, which allows these patents to become even more shallow and cover even more obvious implementations. I have another question though. The thought occurred to me that we could invest in insurance to hedge against unfair software patent lawsuits that could come upon us by surprise. Are you aware of any special insurance programs for this purpose? –  FriendlyDev Aug 24 '11 at 5:59
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I've no idea. A quick Google search for "patent liability insurance" turns up some companies offering it, but I can't recommend any. Again, just don't worry about it unless you've got a successful company already, and if you have that, you can probably hire better legal/bizdev advisors than me! –  user744 Aug 24 '11 at 7:57

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