Online retailer Harry and David is suing IBM over the latter's e-commerce software, alleging that IBM knew it infringed other companies' patents.
Harry and David has filed a US$6 million (£3 million) lawsuit against IBM for fraud and breach of contract, after itself fending off a lawsuit from Charles Hill & Associates and dealing with complaints from NCR – both of whom claimed their patents have been violated by IBM.
The IBM software, allowing businesses to create websites and conduct business online, includes various versions of IBM's Websphere Commerce Business Edition.
According to court papers, Harry and David purchased Websphere Commerce 5.6 from IBM in March 2004. On 13 June 2005, NCR notified Harry and David that its use of the e-commerce programs it purchased from IBM infringed on NCR's patents for e-catalogs.
Then, on 7 June 2007, Charles Hill sued Harry and David for infringing on its web-caching patents.
Harry and David said it had to settle with both companies by purchasing licences to use their technologies. Harry and David also alleges that by refusing to indemnify it against the patent claims, IBM breached its customer agreement.
Harry and David said as part of their contract, IBM was to deliver its e-commerce programs free of patent infringement claims.
According to the lawsuit, IBM knew since 2002 that its Websphere technology violated the patents owned by NCR and Charles Hill.
And although IBM had already settled a patent lawsuit brought by Charles Hill and entered into a licensing deal with NCR, the company continued to market its e-commerce programs without telling customers that they violated other companies' patents.
IBM spokesman Fred McNeese said the company had no comment to make.
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