I have a website where I sell a software that I myself programmed. I
received a Cease and Desist email from another company claiming they
have a patent on something my software does. this is the opening line:
"This letter demands that you immediately cease and desist your use of
processed patented by, and any materials trademarked, copyrighted or owned,
by our clients"
I have no logos, copyrighted material or trademarks of them. Their
company offers a similar software, mine has other features they dont
have. Our websites talk about the same thing but I have no text or
images of theirs.
I need advice on how to proceed. Should I respond to their email
asking them to show me the Patent number?  They are in the UK and US,
Im based in Mexico. Is their patent valid in my country? Suppose yes,
they do have a patent in their country and some from that country
bought my program,
I have a disclaimer saying that use of my site and downloaded files
are prohibited by users if it violates the laws of their country.
Would that cover me in some extent?

Thanks for a complete and very researched answer and recommendation.

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Request for Question Clarification by pafalafa-ga on 17 Jun 2006 19:34 PDT

sunjen-ga,

I'm sorry to learn of your prediciment. 

Owners of intellectual property certainly have a right to send out
cease and desist letter if they feel their work is infringed on.

On the other hand, there are those who go on fishing expeditions,
sending out vague and threatening letters to everyone they can find,
hoping to rope in a sucker and collect some "damages" from them.

Without knowing the specifics of your situation, I can't say what's
what.  However, it is certainly conventional in a C&D letter to
identify the actual patent/copyright/trademark that is being
infringed.  In the absence of such identification, it hardly seems
reasonable to ask someone to decease an action when they don't quite
know what action is being referred to.

I have no real knowledge of these matters from the vantage point of
either Mexican or UK law, though I do have a bit of familiarity with
US cases.

As a first step, though, I would suggest a thorough internet search on
the party that sent you the letter, to see if they have a history of
sending C&D letters to others.

Let us know what you come up with.  

Alternatively, you can post the name of the senders here, and we can
conduct the search for you, if you think that would be a satisfactory
way of answering your question.

Let us know your thoughts on this.

pafalafa-ga

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Clarification of Question by sunjen-ga on 18 Jun 2006 12:02 PDT

hi pafalafa, please read my comment down below for clarification

thks!

Unless you have actually stolen some of their their code or the 'look
and feel' of their program, you should be OK.

The classic patent infringement case was IBM v Phoenix and Phoenix won
because they had reverse engineered the IBM PC BIOS without stealing
any code.

Another classic case was Apple v Microsoft for Apple's GUI for 'look
and feel' which (if I remember correctly) resulted in a settlement and
has given us a worldful of Windows.

However, fighting any case in court is expensive.

First thing, as Paf says, is to find the Patent Number if there is one.

You will probably already know if the 'look and feel' of your stuff
have been 'borrowed'.

The cases in question are worth looking up.  

Good luck!

Bryan

Actually Apple stole the 'look and feel' from Xerox
- Xerox also invented the mouse

Another comical case was Lotus, who ripped of VisiCalc
- the guy who started Lotus was an 'ergonomics consultant' to VisiCorp

At some stage Lotus bought out VisiCorp, and then tried to pursue other clones.

I am very dubious about the 'look and feel' argument
- under Windows, MS persuade and coerce us into using the same UI

You definitely need to find out what these people think you have 'copied'
- start softly at first
- try to get written evidence from them
- they'll probably dig a hole for themselves
- you need the evidence in case they try to get your ISP or sales
intermediaries to take down your site

Are you a member of a Trade Organization ?
If not go here: http://www.asp-shareware.org/

Also check out these NGs :-
alt.comp.shareware.authors
comp.software.shareware.authors   (moderated)

You are not the only person in that boat.

This site might also help you
http://www.chillingeffects.org/index.cgi

Hi thanks for your comments 
I'm posting more details for clarification:

Sender-> legal department of :  w h i t e c l i f f.net  on behalf of
s u b l i m i n a l-p o w e r.com

My site is: m i n d z o o m.net   

No code stolen or application reverse engineered, I didn't even know
they existed until after I developed my app and site.

Some features are similar but I have my own look and feel. If you do a
search on subliminal software or affirmations you will find some 10
other apps with similar interfaces, but each with its own unique
approach.

Already posted on the chilling effect site, waiting their comments.

Hi Dino

I've had a look at the sites you listed and I fail to see anything
that is likely to be patentable or anything that is likely to be an
infringement of copyright. I therefore suspect that this is just a try
on

However I am not a lawyer!

Quite honestly, I think that the entire concept of 'subliminal power'
is a complete load of rubbish anyway.

Is it?