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I have seen patented hardware designs at the level of generic digital block such as shift registers, flip-flops and adders. If a chip maker were to include such a design deep within an ASIC, how can patent holders uncover copyright infringement? Do patent holders really go around planting industry spies to get blueprints, or engage in etching open mass produced chips to deduce internal logic?

On another note, is it ethical to glean ideas from patents and include it within commercial products?

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  • \$\begingroup\$ First off, get something straight in your head: Patent != copyright! They are very different things, with very different rules. \$\endgroup\$ – Michael Kohne Aug 24 '11 at 21:09
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Unless you are a patent lawyer, then stay as far away from patents and patent research as possible, because if someone does slap you or your company with a suit, then you can be hit with triple damages if you are shown to have known about the patent.

So rule 1 about patents: Never actively look at patents. A good second rule is: Never tell anybody about patents.

I guess it's a "don't ask, don't tell" sort of deal.

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    \$\begingroup\$ The patent system is broken, the only guys that benefit from patents today are layers. A bit sad since the idea was to help and protect the small inventors... \$\endgroup\$ – Johan Feb 18 '11 at 22:04
  • \$\begingroup\$ I was told at a previous job that it's no defense to not look at the other guy's patents, at least when the other guy is our direct competitor. We'd simply be presumed to know about all of their patents. So in that case, no harm in looking at the patents --- it might give you a good idea of what not to do. \$\endgroup\$ – The Photon Jul 19 '12 at 16:36
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First I agree that the patent system is broken, especially in its dealing with computer programs.

Detecting infringement deeply hidden in a read-protect FPGA or microcontroller can be difficult or almost impossible. But that is nothing new.

Most big companies have switched from using individual patents to a 'chinese horde' approach: I have 10,000 patents in this field we are both working on, you have only 6,000, so you have to pay me for the difference of 4,000 and we grant each other cross licenses. Or else I'll go to court an we will both loose (but you will loose more than I!).

Patents are meant to be read, that was the whole purpose of the patent system: make new ideas available (but at a cost). So getting an idea from a patent text is good and free, unless (here is the catch) you infringe on a claim. AFAIK (and in my country, the Netherlands) infringement is infringement, for patent law it does not matter whether you knew. (but it might matter for other laws.)

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Like the previous answers, there are no ethical problems - it's just that as long as you are "making, using, or selling" products that are described in unexpired patents, then the infringing company will be in trouble. It is also true that 3x damages can be levied if the infringer knew that he/she was infringing.

As a side note - if you've checked out some of the patents that's out there, it's near impossible to understand what is going on. Also, patent claims describe the underlying idea/technology in such general terms that it's near useless most of the time to apply it in a specific product.

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As to how the discovery is done in the US. No spies necessary. If your device happens to do something that looks infringing a patent (like has the same purpose or looks implementing something with some specific time or energy consumption or exposes some suspiciously similar buggy behavior) then in the US the patent holder can file a lawsuit claiming that you maybe infridge their patent and then the court orders to retrieve all possible documentation from you for further analysis. If that happens and there's any trail in your stored documents (blueprints, agendas, e-mails, whatever) you're likely to be found guilty in patent infridgement. This is the number one way - a suspicion is enough for requiring full blown documents disclosure. And of course patent holders will sometimes do analysis of actual chips and other devices.

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