The only part that confuses me is what they mean by "collaborative workspace". On their website they provide a section where the buyer/seller can upload files and communicate with each other on the elance website.
It's really irrelevant what they actually do on their website -- in order to determine what is meant by "collaborative website," you need to look at the patent claims, then the patent specification, then the prosecution history of the patent, then to "extrinsic" sources to determine what the term "collaborative workspace" would mean to "one of ordinary skill in the art" -- in that order. What they actually do may or may not be what is covered by the patent. In addition, even if what they do IS covered by their patent, they might not be limited to what they do -- the patent may be broader than that.
However, I'm not going to have this on my website so I wouldn't be following their claim 1 step by step, so does this mean I'm still infringing on their patent?? I don't believe I am. What do you think??
It's really quite impossible to tell without a thorough understanding of the patent, its prosecution history, what the industry considers a "collaborative workspace," and what you actually plan to do. This is why a full noninfringement opinion from an attorney can cost upwards of $50,000 -- it's oftentimes a lot of work and research to determine the precise scope of a patent, and whether or not it overlaps a particular implementation.
If one of my business partners lives in Canada, and we open the company based out of Canada instead of the US. Will the company with a US patent be able to come after the Canadian L.L.C. for patent infringement?
It depends -- in general, U.S. patents are national in scope, which means that they are only valid in the U.S. A U.S. patent cannot be enforced in a Canadian court, for example -- only Canadian patents can be enforced in a Canadian court. If you don't have any offices in the U.S., then the U.S. courts have no jurisdiction over the company, and it may be hard to sue for infringement of a U.S. patent.
That said, this is an area of law that is changing, and in the recent Blackberry decisions, a Canadian company (RIM) was found liable for patent infringement of U.S. patents by U.S. courts. RIM did have assets in the U.S., which made them susceptible to being sued in the U.S. But the point is, this area of the law is changing (there is another case on extraterritorial application of U.S. patent laws that was recently granted certioria by the U.S. Supreme Court, and will be heard next year), and even if you are safe now, who knows what might happen in the future.
You might want to consider sitting down with a patent attorney, who can review the patents and your technology and advise you accordingly. If you just get a simple opinion, and not a full-blown noninfringement opinion, it should cost far, far less than the $50,000 quoted above -- and if it turns out that you have little (or nothing) to fear from this patent, that puts you in a better place than relying on having the company located outside of the U.S. to avoid the patent.
