(e-mail address removed)>, (e-mail address removed)
says...
[ ... ]
I'd have to read the entire patent to be sure, and even then,
I'm not a patent lawyer. Still, the first sentence of the
abstract says it concerns a "process". The real question then
becomes: what is a process, and what is an algorithm. The fact
that the patent seems to talk about input and output formats
suggests that it is more than an algorithm. (On the other hand,
one might seriously question the novelty or originality. Off
hand, it looks to me that what is being patented is the use of a
program to convert between two formats. Which isn't what I'd
consider a particularly novel or original idea. But from what
I've read, the patent office in the US doesn't really have the
means of verifying such claims, and counts on the applicant
being honest and providing full and detailed "existing
practice".)
The line between what's patentable and what's not ("Statuatory subject
matter") is fine and has been argued repeatedly over the years. In the
US, the Court of Appeals for the Federal Circuit recently handed down a
decision in the "Re: Bilski" case that (at least for the moment) made a
rule that to be valid, the patent has to be drawn to either a
transformation of matter, or the use of a "specific apparatus". As such,
the patent cited previously, along with quite a few others, may well be
invalid, unless a specific mechanism is required for its implementation
-- and chances are that "digital computer" won't qualify as the specific
apparatus, at least in the (likely) case that a computer is the _only_
reasonable apparatus for its implementation. In particular, there's also
an earlier (Benson) case in which the supreme court decided that an
algorithm for converting from binary to BCD could NOT be patented,
specifically because a digital computer was the only reasonable way to
implement the algorithm. Since that was the only reasoanble apparatus
for its implementation, they considered the patent to cover essentially
all possible implementations, not just a specific one -- so it was
essentially equivalent to patenting the (unpatentable) algorithm itself
rather than its implementation with a specific apparatus.
That said, I should also point out that the Bilski case is likely to be
appealed to the Supreme Court -- which seems to reverse decisions made
by the Court of Appeals for the Federal Circuit fairly frequently, so
this rule may be temporary.
[ ... ]
.
US patent law requires (35 USC $112):
The specification shall contain a written description of
the invention, and of the manner and process of making
and using it, in such full, clear, concise, and exact
terms as to enable any person skilled in the art to which
it pertains, or with which it is most nearly connected,
to make and use the same, and shall set forth the best
mode contemplated by the inventor of carrying out his
invention.
The requirement is there (and the PTO is well aware of it) whether it
happened to be mentioned on one specific page or not.
Trade secrets are almost the opposite of patents: reveal your
code, or not take proper and adequate steps to prevent it from
being known, and you forfeit the right of trade secret. You
cannot have a patent and a trade secret for the same thing (and
I'm pretty sure that still holds in the US as well).
I don't think there's any specific law to that effect, but I can't quite
imagine how anybody could claim both at once -- though I can certainly
believe that a single program, especially an "enterprise" type of thing,
could embody both trade secrets and patents.
And of course, you can register almost anything as a trademark.
I've often wondered why trademark protection wasn't used for
"look and feel"---copyright doesn't seem to be right here. (To
me---and again, I'm not an IP lawyer, so there are likely issues
that I don't understand.)
The idea of a trademark protection is consumer protection -- in
particular, it protects a consumer from buying something thinking that
it's something else. The typical example would be thinking you're buying
a Rolex, but upon close examination finding that what you bought was a
"Polex" instead.
This means that a trademark must be something the consumer can/will see
(or hear, or whatever) during the process of deciding what product to
buy. It's also why trademark holders are required to be diligent about
protecting their trademark. If a name that started out with a trademark
falls into common use (e.g. people referring to any photocopier as a
"Xerox") the courts can (and will) decide that there's no real
likelihood that (for example) an IBM copier being sold as a "Xerox" will
lead the consumer to believe he's buy a product built by the Xerox
company rather than just buying a photocopier.
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Of course. You can *publish* anything you want about a patent.
(You might be required to mention that the code is covered by
patent. I'm not sure there. And anyone who uses the code to
compete with the patent holder, without the authorization of the
patent holder, is infringing.)
The law doesn't require that you mention a patent when you publish
something about a patented invention. Some publications do. At least
when a patent holder publishes something, they'll generally want to
mention the patent anyway -- wilful infringement (i.e. when the
infringer is aware of the patent) can lead to increased damages.
[ ... ]
An English rendition is clearly legal; it must appear in the
patent. Beyond that, you'd have to talk to a patent lawyer, to
read the entire patent, and measure exactly what is covered.
And you'd have to ask to what degree the patent is enforceable;
if it is a solution that is evident to any competent
practitionner, you can fight it.
Just a nit: a patent includes claims, and those are what really define
what the patent covers -- the specification may disclose a great deal
more that's not patented. The specification IS, however, your first
reference to figure out the meanings of terms in the claims when/if
you're not sure the usual definition applies.
Note that RSA is patented in the US, but the patent is not
recognized elsewhere. (I think it might be recognized today,
however. As long as the patent covers using the algorithm for
a specific cryptographic purpose, and not the algorithm itself.
It's a "machine" which is realized entirely in software.)
Another minor note: RSA _was_ patented, but 1) that patent expired years
ago, and 2) it may be open to some question whether that patent would be
considered valid under the current rules anyway.
Interestingly many patents, even some that are quite well known, are
never tested in court. Just for one well known example, the Welch patent
on LZW compression was _never_ litigated (and probably never will be,
since it's expired).