[disdev]

Exactly. And I think it's a potentially valid argument (without knowing all the details about the case). But, not knowing about a patent, or saying you didn't copy from a non-existent (or existing) implementation of it, doesn't mean you're not bound by it.

Let's say I patent a design for a table, something unique and interesting that's never been done before. Unfortunately, I haven't gotten around to building it yet, or haven't marketed it publicly. You come around after my patent and build and sell a table that is very similar to my table design... even exactly the same in some respects. Even though you may not have known about my patent, and didn't maliciously copy anything, you would still be infringing upon my patent. Even if you just built the table from someone else's parts.

The resolution would be that you either pay me a reasonable license fee, buy the patent, or argue over the validity. For the validity aspect, you either say you had prior art that predates my table design, that some other prior design existed, or that my patent shouldn't have been granted for some other reason.

I worked for a company that invented a novel product but didn't patent it. Some other company came around and made the same thing a few years later and patented it. Personally, I think they knew about our product, but that's not important. They were granted the patent and then proceeded to send warning letters to our customers, saying they were the patent holders and might be calling later to collect license fees. Then, they sent something to us saying, hey, we can proceed with collecting from your customers, or you can license it from us directly and it'll cover all your customers.

We could have gone to court to have the patent invalidated. We had prior art. But, not knowing what prior art they had, and the generally slow nature of that process, and the risk to our customers, we just paid them. It was an annual fee that wasn't too onerous and made it worth it just to pay it.

That is about the trolliest of patent trolling. But, they played their hand perfectly and make a lot of money on that license annually with no real work to get it.

Personally, I think software and process patents shouldn't exist.