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Understanding (and Avoiding) Software Patents?

Posted by Cliff on from the patent-infringement-mine-sweeping dept.

An anonymous reader asks: "I'd like to write some Free backup software, but this area is mined with patents. I downloaded one and tried to understand it, but the 'claims' section (arguably the most important part) is made up of utterly incomprehensible patentese, and I can't afford to hire a patent attorney to help me understand it. Are there any free or cheap ways to learn enough about patents to understand them, so I can figure out exactly what is patented and therefore avoid it?" "How different does my software have to be in order to be non-infringing? The patent I tried to understand is Dantz's 5,150,473. Many, including Slashdot readers, have said what this patent covers, but from reading the patent itself, I would never have guessed. Also, there are lots of other patents to understand and avoid, so I'm looking for general information on how I can unravel it all into language I can understand."

2 of 72 comments (clear)

  1. Just to add my two cents... by tchuladdiass · · Score: 2, Interesting

    There have been a few cases that source code is speach, i.e., in relation to publishing encryption code. If any of those cases held up, then it may also apply to patented algorithms. Therefore if you only publish source code then it would be up to the person compiling/running the code to check for patent infringements. Of course it would be nice if the system actually worked like this...

    1. Re:Just to add my two cents... by boy_asunder · · Score: 2, Interesting
      I've actually written a law review comment on these laws. While one case did hold that code is speech, a few others haven't; it depends on the jurisdiction. And the case that would be the most likely precedent to patent law would probably be the 2600 case, since it involved the DMCA, and that didn't accept the free speech rationale as enough of a defense. Frankly, and annoyingly, it's really hard to get judges to recognize code as speech, since to most of them it's just a bunch of meaningless symbols; at best they tend to analogize it to a recipe.

      However, if you were only publishing source code, this might not matter at all because it's not clear that you can really sue someone under patent law for publishing source code. Patent claims generally have to be for a device, a method, or a composition of matter. What you emphatically cannot patent is a pure algorithm.

      So if you look at them, they'll claim some sort of software system, or the method it performs, or some sort of computer media that has instructions written on it. Source code published online (or especially published on paper) isn't really anything more than an expression of an algorithm, so it's pretty much outside the realm of traditional software patent claims.