Software patent worry

[GBGames]

Like some people, I work on my indie business part-time while working a day job full-time. It pays the bills, etc.

Let's say hypothetically you just learned something new about the programming language you use. You start to think of some applications of this new knowledge. One specific problem comes to mind, and start thinking of ways to tackle it.

Then you find out that someone at the day job is also tackling a similar problem and that the company may patent the solution.

It's a standard feature of the programming language used in a certain way. It turns out that it is also a topic that has been discussed for years on the language's moderated newsgroup.

You know that the patent may get granted regardless of how "invented" it already is because the patent will be applied to the day job's business, which focuses on certain types of machines. You can patent the use of a wheel on these machines, and in fact I believe it is a real patent in that industry.

It's a useful solution to your own indie game work, though, and presumably to other applications outside of either industry as well.

Knowing all that, what do you do? Do you drop the idea of using such a solution for fear of litigation (although, as I said, your indie game business is different enough from the employer's business that if it continues its policy of keeping patents for defensive purposes only you shouldn't need to worry too much), or ignore it because you know that as complex as the code is to write, it isn't inventive enough to have warranted a patent in an ideal patent office?

[Indiepath]

First thing to do would be to check your contract of employment, you might well find that your employer has the rights to any IP you create whilst in their employment. You might also seek to prove that you thought of the idea independently of your employment and that your creative process was not influenced in any way by work undertaken for your employer.

Basically I think they've got you over a barrel and there is not a lot you can do about it.

[GBGames]

First thing to do would be to check your contract of employment, you might well find that your employer has the rights to any IP you create whilst in their employment. You might also seek to prove that you thought of the idea independently of your employment and that your creative process was not influenced in any way by work undertaken for your employer.

Basically I think they've got you over a barrel and there is not a lot you can do about it.

Before accepting the position, I talked to my own attorney and the employer's, and basically what I make is only theirs if it pertains to their business. While that could be interpreted broadly, it also means that if there is an application outside of their industry, they aren't making claims on that use. My own company's projects aren't part of the same industry, and while there is some overlap sometimes, I'm fine to use of my own "inventions" outside of their industry.

As for this specific "invention", it seems to me that it has already been solved over the years in public forums. The employer's inventor independently created his own solution, and I've been talking to him about it, but I am also reading that a number of other people over the years have thought of the same problem and have provided solutions.

Imagine if a company patents the idea of using a few features of C++ in a certain way in digital radios or microwave ovens or something involving a computer in a device. The patent is more to protect against other radio makers trying to sue the company ("You're lawsuit accusing us of infringing is fine, but our countersuit can make it costly for you, too") than to prevent anyone from using it in their devices or general computers.

Since the problem has been solved before, but the patent is "as used in [industry-specific] devices", it shouldn't apply to use in an indie video game (you know, so long as I avoid making my own games on devices that would compete with the employer). At least, I would think.

It's strange that I have to worry about how someone could patent a possible use of a programming language that allows such use in the first place, especially when others have already done either the same or incredibly similar things.

[Tom Gilleland]

It's a standard feature of the programming language used in a certain way. It turns out that it is also a topic that has been discussed for years on the language's moderated newsgroup.

It sounds like there is prior use; and that would invalidate an existing patent, or block a new patent from being issued.

I've written a couple of programs over the years that have effectively invalidated two patents. There is just too much published material to do a thorough search to issue a new software patent in the first place. And many of these patents are just derivatives of existing work. And then the cost file and defend them is so high only large corporations can cover these costs.

This whole software patent system is really messed up. :(

Tom

[Fry Crayola]

Software patents should be abolished. The architecture you're working with is already forging the road and you're just walking down the path. Besides, I don't think a single person in the world can claim that he's never used another person's code in any shape or form, whether it's a freely shared function on an internet forum or a few lines of code from a book to get the job done.

You don't invent code. You discover it. Nobody patented electricity (and I hope I'm not corrected on that, for the love of humanity).

[milo]

It sounds like there is prior use; and that would invalidate an existing patent, or block a new patent from being issued.
Not necessarily. There is a case coming up before the US Supreme Court that addresses some of these issues, and not just in relation to software. The current state of patent law seems to be that if an inventor combines several existing inventions that have never been combined before - without actually changing any of them - the work can still be considered novel and patentable if it is not otherwise obvious to a skilled practitioner of the art.

In this case, since there has been discussion of the solution on the newsgroup, the claim will probably fail the teaching-test and be considered obvious. This is different from "prior art" per se.

To the OP's point, patent claims are a tricky business. IANAL, but it sounds like the hypothetical company is claiming patent protection on the use of a technology in a certain context. If you are using similar technology, but in a different context, then your use may not be restricted by the claim. Put another way: according to your description they are not attempting to patent the feature itself, or even the the use to which the feature is being put. They are trying to patent a solution that incorporates a particular use of the feature.

There is no reliable way to advise you without knowing the specifics.

By the way, which language is it, hypothetically?

[GBGames]

By the way, which language is it, hypothetically?

Hypothetically, the language is C++. Hypothetically, that is. B-)

[lakibuk]

I would use any useful technique i learn on my workplace for my private games.

[cliffski]

How would anyone know you are using this technique? Is it that apparent from the programs behaviour. Is anyone really going to be that obsessed about the patent to scan through the bytes of your exe to check you havent used their patent?

When I worked for corporate evildom, we had lawyers tell us to sign a piece of paper that said we (each coder) take full responsibility for ensuring that all our work was not infringeing on anyones patents or copyrights. This was pure BS, apart from being the fact that this is the lawyers job, not ours. So I pointed out to the legal dept that the '!=' operator was the subject of a patent dispute (outcome unknown) and that I was pretty sure we used this a lot in our code.
They were still looking into the implications when I left.
I never signed it :D

[GBGames]

How would anyone know you are using this technique? Is it that apparent from the programs behaviour. Is anyone really going to be that obsessed about the patent to scan through the bytes of your exe to check you havent used their patent?


I plan on releasing the code under a Free Software license. It will be very easy for them to check, but if I get my own code from a posting on a public newsgroup, it really shouldn't matter so much.

[illume]

Point out that prior art to him in an email.

Then if he applies for the patent knowing there is prior art he is being fraudulent. Otherwise if he is doing something worth patenting you have helped him out. Since he will be able to say why his invention is different.

I don't know the law, this is not legal advice.

[GBGames]

Point out that prior art to him in an email.

Then if he applies for the patent knowing there is prior art he is being fraudulent. Otherwise if he is doing something worth patenting you have helped him out. Since he will be able to say why his invention is different.

I don't know the law, this is not legal advice.

I have been sending emails to the guy with links. Apparently what he is doing is either different enough that it isn't quite the same thing I want to do, or it is the same. Either way, I don't think I'll need to worry about anything.