How do these sites get away with infringing Elance's patent?

I know you all aren't patent lawyers but maybe I am missing something obvious?

How do these sites get away with breaking Elance's patent U.S. Patent 7,069,242 [guru, scriptlance, vworker, peopleperhour]???

I know the patent is incredibly silly, it basically patents how you find a web designer in the real world into the web. Call them, tell them your project, and get their estimate, and then call others, and choose. It's almost like patenting how to tie your shoe: put on foot, lace up, tie laces.

Since this patent is so broad in process; does it even hold any water? Is that why these other sites are not scared to do it?

Thanks,
James

Patents are worth exactly as much as the patent-holder's ability and willingness to sue.

My father holds several patents on retaining ring pliers. One of his competitors infringed, so he went lawyer-shopping. Since patent lawyers don't work on contingency, he amassed a multiple-$100K war chest, then brought the hammer down. The infringer was required to disgorge all profits from the infringement and stop manufacturing the competing pliers.

When Autodesk was about to do its IPO in the 80s, they were sued by the owner of an infamous submarine patent on using XOR to create cursors on a raster screen. Although there was tons of prior art, so the patent could easily have been defeated, fighting it would have delayed the IPO. So it was cheaper to pay off the scoundrel.

My guess is elance either doesn't have the money to sue, doesn't want to bother, or is afraid that if anybody fought back, the patent would be declared invalid.

You need to consider a number of things when looking at this scenario.

1. The strategy of the patent owner
   • When do we start with letters to the infringer.
   • What publicity do they want, what will it do to their image.
   • What is the goal (licencing, patent damages, stopping competitors, defensive patenting, patent selling, inciting fear in buying from competitors)
   • Cash flow management strategy, because litigation isn't cheap.
   • The fundamental business of the company (even if it is just a patent troll).
   • The particular venue to bring patent claims (somewhere in Texas I hear).
2. The attributes of the potential Target
   • The size of the target (last through litigation, can pay the penalties)
   • The likely response to threats by management.
   • The ability to threaten the target.
   • Can they avoid the patent?
3. The Patent itself
   • Is it overly broad?
   • Do any claims pass the test of obviousness?
   • Do any claims pass the test of prior art?
   • Is it more useful as a threat or actual litigation?

• Monsanto attacking farmers with GM
  Seed Patents
• EpicRealm Website Patents Revoked which have similar issues as above
• Microsoft Threatening Linux with Patents

I recommend that you google your question. For instance, I found this discussion: http://answers.google.com/answers/threadview/id/768986.html When it comes to patents, what matters are the claims. You are really in trouble only if you implement exactly what the claims say.

For instance, in that particular patent, the first claim says:

1. A computer implemented method, comprising: accepting a posting on a website of a project that a buyer wants completed; providing a database containing all registered sellers; receiving a bid on the project from any seller, where all registered sellers are qualified to bid on postings in all categories; allowing the buyer to accept the received bid from the seller; and allowing the buyer and the seller to work on the project in a collaborative workspace accessible by only the buyer and the seller, where the seller develops and delivers the project in the collaborative workspace and the buyer can track the project in the collaborative workspace before it is complete.

(*) obviously, patent law is so much more messy than what I describe here, anyone can pretty much anyone else for anything, so if you are serious and betting real money on this, talk to a lawyer

They have US patent and probably patents registered in some other countries? You can always register you company (site) in some other jurisdiction not covered by this patent.

Basically patents aren't worth much these days unless:

Your prepared to fight and have deep enough pockets to do so.

Patents are so specific that if I know the patent I can still solve the same problem in a 10% different way and you can't touch me ... In software that can be write it in ruby rather than .net ...

You need to be worldwide or not at all, just host the server and company in a different location.

And lastly the patent office has no clue about hi-tech ... See patent on the hyperlink, facebooks recent patent on a news feed despite 10 years prior art from other parties ... There are lots of examples where a patent shouldn't have been granted ... So people have started ignoring them because it would cost more to prove it or winning the market is worth more than the cost of the law suit (Microsoft and apple over the last 20 years)