In response to my previous post about goofing around with MythTV, a comment was left asking if I was concerned about violating someone else’s patent by building a MythTV box. In fact, I am not concerned about violating anyone’s patent, and here is why.
Infringing on someone else’s patent is not a crime. I will not get hauled into jail for infringing. I can, however, be sued for either royalty damages or an injunction against further infringement.
There is a kicker. If I knowingly violate someone else’s patent, and I am sued, I am liable for three times the damages. However, I do not have a duty to conduct a search to see if I might infringe.
So, the potential of infringing on someone’s patent exposes me to some risk. I may be sued for royalties and allowed to keep using the technology, or I may be required to stop using the technology altogether. If I am sued, what would a reasonable royalty be? Just guessing, I would suspect that a royalty would not be more than $10 or so a month (likely much less), which is a royalty that I would be willing to pay if necessary. If I am asked to cease using the technology, I could always buy a TiVo box wherein TiVo would (either expressly or impliedly) indemnify me from suit.
This is a simple business decision, no more and no less.
The patent owners have an obligation to enforce their patents. In many cases, it is much more expensive for them to enforce their patents than the return they could get, and such is likely the case here. Part of the patent owner’s business strategy must include evaluation of how the patent may be infringed, by whom, and how the detection and enforcement of the patent will proceed. If it cannot be detected or enforced, the patent may not have much commercial value.