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Patent Infringement
Posted by . updated on 4/21/2009
I am planning to start an internet based company that will be creating a game very similar in look, idea and functionality to that of another major game developer. The main difference is that this game developer's game is hosted over the developer's console, whereas mine will be hosted over the internet. Will the major developer be able to sue me for infringement rights? Also, I am planning to start a sole proprietorship changing that to an incorporation when I release the game. Granted that the major developer will only know about the game after its release, will they be able to ''touch'' any assets during the time the company was a sole proprietership?
Answers (3)
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Daniel ...
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The idea is typically not protectable, the "look" could be protected by copyright and "functionality" by a patent. So, it all depends on many factors, which you can't evaluate without a well-rounded IP attorney (with knowlege about patents, copyrights, unfair competition, etc.). Setting up a corporation is also very important (in order to protect your own assets), and advisable before you release the software. However, that is also a complex legal question (sorry, but the law is not a science, and there are many factually-dependent tests and analysis). Under some circumstances, it is possible to "pierce corporate veil" and reach individual investors' personal assets. So, you also want someone who will advise you about corporate law and necessary formalities for protecting your personal property against potential claims of infringement.
Daniel Basov
Solton Rosen & Balakhovsky LLP
110 Wall Street, 11th floor
New York, NY 10005
daniel.basov@srblaw.net
212-344-1744
Note: This message is not intended to provide legal opinion and does not establish attorney-client relationship.
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Bryan R...
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I can't give you a Yes-or-No answer to either whether your corporation would be liable for infringement or whether you could be held liable personally for pre- or post-incorporation activities. What I can say is: (1) Game developers protect their patents, trademarks and copyrights relentlessly. (2) Game developers are willing to spend a lot of money on lawyers, investigators and expert witnesses when necessary to win cases against infringers. (3) The intellectual-property laws protecting trademarks, copyrights, trade secrets and patents are written, amended and interpreted by the courts so as to give a fairly high degree of protection against infringing schemes, including ones where an undercapitalized corporation is placed in front of an infringer as an attempted liability shield. So, I'd advise against it. If you weren't sued right away, you'd be sued as soon as you started to derive any significant income from the knockoff product.
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David N...
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You can always be sued; so get yourself a law firm to advise you on this before the problems can't be avoided.
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