Possible existence of a patent for an algorithm I've invented but not implemented

[Leros]

I'm working on a possible new product at work and one of the major roadblocks has been implementing an algorithm for doing <TASK>. I spent a decent amount of time thinking about this and came up with an algorithm that uses <KNOWN_ALGORITHM> in an interesting way. My company has already implemented our own version of <KNOWN_ALGORITHM> so it shouldn't be too bad for me to implement it.

While on StackOverflow looking up something not really related, I came across a comment where a user had posted an excerpt from a patent owned by <TECH_GIANT>. After reading this excerpt, I'm 95% sure that <TECH_GIANT> has a patent on the algorithm I came up with. I know that they use <KNOWN_ALGORITHM> in a novel way at least somewhat similar to mine to accomplish <TASK>.

Where do I stand at this point? I don't have confirmation that the existing patent is the same as my algorithm without actually reading the patent (which I obviously can't do).

 

[code65536]

Patents are publicly-viewable. They must be, since that's the trade-off for the patent protection: that the patented thing must be open for all to see. Otherwise, you'd do what Coke does with their recipe and keep it a trade secret. No legal protections, but no need to let anyone know.

 

[Leros]

Patents are publicly-viewable. They must be, since that's the trade-off for the patent protection: that the patented thing must be open for all to see. Otherwise, you'd do what Coke does with their recipe and keep it a trade secret. No legal protections, but no need to let anyone know.

My understanding is that I could implement the algorithm independently if I knew nothing about the patent. Is that not correct? Either way nobody would ever sue over this, but I don't want to knowingly violate a patent either.

 

[BrightCandle]

My understanding is that I could implement the algorithm independently if I knew nothing about the patent. Is that not correct? Either way nobody would ever sue over this, but I don't want to knowingly violate a patent either.

Your understanding is wrong. If its been patented then its theirs for the life of the patent, you not reading it and coming up with the approach independently is not sufficient defence.

Making the assumption no one would sue over this is a bad call, now is the right time to contact your legal team or outside council and work out where you stand, before you rely on the use of patented technology and hope no one notices.

 

[Markbnj]

If the algorithm is central to some proprietary product that you will be selling then you need to have a lawyer review the patent and give you an opinion. If it's just something you're using on the back end somewhere for internal purposes then personally I wouldn't worry about it. There's a ton of gray in software patents and nobody is coming after you if there isn't some money involved.

 

[Leros]

If the algorithm is central to some proprietary product that you will be selling then you need to have a lawyer review the patent and give you an opinion. If it's just something you're using on the back end somewhere for internal purposes then personally I wouldn't worry about it. There's a ton of gray in software patents and nobody is coming after you if there isn't some money involved.

It's not critical but it is important to the success of the product. I could create a crappy unusable version of the product without it. The algorithm would only be run on the back end. I don't see how it could turn into any legal trouble unless <TECH_GIANT> (who is not a competitor) saw that we had a product that does <TASK>, investigated how we implemented, and managed to find out. That being said, I don't want to be responsible for anything of questionable legality so I'll probably bring this up at work.

 

[sourceninja]

Do they have it patented with the words "on a mobile device", or "On a flat screen", or "on a server" in the description. I ask this because it appears to be perfectly ok to patent existing technology with the words "on a mobile device" and get away with it. So if they don't then patent yours for running on "on a X" and be done with it.

 

[Ken g6]

My understanding is that I could implement the algorithm independently if I knew nothing about the patent. Is that not correct? Either way nobody would ever sue over this, but I don't want to knowingly violate a patent either.

That's not correct, as BrightCandle explained. But in many cases I gather that developers are not supposed to do patent searches because if there is something they should have found, that could be considered knowingly violating the patent which triples damages or something.

Do they have it patented with the words "on a mobile device", or "On a flat screen", or "on a server" in the description. I ask this because it appears to be perfectly ok to patent existing technology with the words "on a mobile device" and get away with it. So if they don't then patent yours for running on "on a X" and be done with it.

I think that's what a recent Supreme Court ruling just undid.

 

[uclabachelor]

It's not critical but it is important to the success of the product. I could create a crappy unusable version of the product without it. The algorithm would only be run on the back end. I don't see how it could turn into any legal trouble unless <TECH_GIANT> (who is not a competitor) saw that we had a product that does <TASK>, investigated how we implemented, and managed to find out. That being said, I don't want to be responsible for anything of questionable legality so I'll probably bring this up at work.

Someone can whistle blow to <TECH_GIANT> and give them a heads up and they could issue a C&D letter and/or go for a lawsuit.

If I were doing this for myself, I'd consult an IP lawyer. If I were doing it for work, I'd get approval (in writing) from management on using the algorithm to get the job done.

 

[Aithos]

Someone can whistle blow to <TECH_GIANT> and give them a heads up and they could issue a C&D letter and/or go for a lawsuit.

If I were doing this for myself, I'd consult an IP lawyer. If I were doing it for work, I'd get approval (in writing) from management on using the algorithm to get the job done.

Two situations:

1) You're attempting to create a product that will be sold in some shape or form. If this is what is going on, then I suggest very strongly you find out what the patent is or get express (written) instruction from your management/legal team absolving you of any responsibility or legal liability in the case <TECH GIANT> comes after the company. If you have that then the company will not have plausible deniability and be able to throw you under the bus by saying "we didn't know he was using it".

2) The application/system you're creating is for internal use or on the back-end where the customer (users) won't know how the process is working. If this is the case, most people would just develop it and put it into production. As long as you aren't a competitor or trying to make money through direct sales it is unlikely <TECH GIANT> would even be able to find out, let alone care about it being used. Don't take that for legal advice, I'm just telling you what most people would do, it doesn't make it right or legal.

The general idea of a patent is to protect a company from competitors stealing their technology to create a similar product that directly impacts the patent holder's business. If you're in an unrelated business, did the development yourself and are servicing systems that in no way shape or form compete with the <TECH GIANT> then you aren't affecting them in any meaningful fashion.

Software is a tricky thing, you aren't talking about open source (since your company will be using it for something) so you can't just steal their code and run rampant. At the same time, software development itself is based around accomplishing some goal your own way. If you honestly develop your solution yourself, it will be significantly different enough from <TECH GIANT> that legally you'd probably have a leg to stand on. I doubt their patent covers use of the algorithm in question, just their specific implementation (which you don't have access to source code unless I'm missing something).

I guess the key point is this: absolve yourself of any legal responsibility and get guidance from management and/or your companies legal team.

 

[BrightCandle]

The big problem is that you know it's patented. If you don't report it you are potentially going to be the target of a lawsuit by your own company. You don't have a choice about passing the buck to legal on this, because if you don't you are going to need to get private council to defend yourself.

 

[KentState]

http://en.wikipedia.org/wiki/Clean_room_design may apply. I'm not a patent expert by any means.

 

[mosco]

http://en.wikipedia.org/wiki/Clean_room_design may apply. I'm not a patent expert by any means.

I don't think that applies here.

I worked for Oracle for a short time when the company I worked for got acquired. We were told never to search for patents, even at home.

 

[KentState]

I don't think that applies here.

I worked for Oracle for a short time when the company I worked for got acquired. We were told never to search for patents, even at home.

Yeah, the searching for patents is where you go wrong.

 

[_Rick_]

First:
You cannot patent algorithms.
Second:
You CAN patent specific implementations.

Therefore you can have two patents using the same algorithm for similar goals, but within different frameworks, and they can peacefully coexist.
A patent serves to protect a market position. So if the entity that has filed the patent has not filed a claim against your company, then you can assume that they are not competing in the same market, therefore the patent likely has no holding on what your company is doing. Patent enforcement is usually easy, because patents are required to be detectable. If a competitor suddenly comes up with a product that appears to use your patented procedure, then you can apply a test to the product and determine whether it infringes or not. If this is not possible you cannot patent your method or device, and if you did, you had no way of benefiting from it.

So, stop worrying, and remember, algorithms aren't patentable. The same goes for recipes and many other things. Before worrying about patents, look up some of the introductory literature regarding the subject, there are plenty of primers out there.

 

[beginner99]

Also note that a lot of patents especially in software would be judged invalid in court if it ever came that far. In this case you could claim that it can not be patented as going from <KNOWN_ALGORITHM> to using it in an interesting way can always be called "obvious" and what is obvious can not be patented (well it can, but it will not stand in court).