When you come up with a new algorithm, you can obtain a patent.
An "algorithm" is a procedure (method) for solving a problem formulated as a computer calculation method.
For example, "a method for predicting how a car will shake when it is moving based on its design data" is an invention related to an algorithm.
An invention related to algorithm is hereinafter referred to as "algorithm invention," and patent right obtained for algorithm invention is hereinafter referred to as "algorithm patent".
Weaknesses of Algorithm Patent
The weakest point of an algorithm patent is that it is difficult to detect infringement.
Even if you find the suspect product (the product that is suspected of infringement), it will be difficult to exercise your rights if you cannot be sure what kind of algorithm the suspect product is using.
In the above example, even if the suspect product calculates the shaking of a car by some method based on the design data of the car, if it is not clear whether the algorithm is the same as the patented one, it will be difficult to exercise the right.
The patent application will be published on the Internet.
If you file a patent application, your algorithm will be known. The risk is that other companies will be given hints on how to develop the technology.
Patent applications carry the risk of technology leakage.
It is difficult to detect patent infringement and can lead to technology leakage, so some people believe that obtaining an algorithm patent is meaningless. The worst-case scenario is that the algorithm is imitated because of the patent application, and the right cannot be exercised. In such a case, the reason for filing a patent application would be lost.
Therefore, algorithm invention alternatively could be kept as a trade secret rather than filed as a patent application.
Nevertheless, it is too early to assume that algorithm patents are meaningless. The decision not to obtain an algorithm patent may create risks.
Risk of not obtaining an algorithm patent
Suppose Company X invented Algorithm A1 but did not apply for a patent, and Company X kept Algorithm A1 as a trade secret.
Company Y then developed Algorithm A1 completely independently, and Company Y filed a patent application for Algorithm A1 and obtained Algorithm Patent P.
If Algorithm Patent P is granted, Company X's product will become an infringing product of Algorithm Patent P (Company Y).
*There are possible remedies such as "assertion of prior use rights" or "invalidation of patent P," but they are time-consuming and there is no guarantee that they will be satisfactorily remedied.
Company X will face the constant threat of algorithm patent P even though algorithm A1 was originally and first come up with.
Company X will find it difficult to sell its product with the patent risk (not a conscience issue, but a legal one).
If Company X had obtained patent right for Algorithm A1, it would have been in a decisively superior position to Company Y.
Also, if Company X had filed a patent application, Company Y would not have been able to obtain Algorithm Patent P.
The paradox is that if everyone refrains from filing patent applications for algorithm inventions, it becomes easier to obtain algorithm patents.
It may be that Company X decided that Algorithm A1 was not worthy of a patent application because it was so mundane.
This kind of pattern is very common, although it is not limited to algorithm patents. It is often the case that the inventor him/herself was reluctant to file a patent application, saying that it is not a significant invention, but was persuaded by the people around him/her to file a patent application (although the reverse pattern is also common).
Thus, there is also a risk in not obtaining an algorithm patent.
Patent infringement can be detected?
As mentioned above, algorithm patents have the weakness that patent infringement is difficult to detect. In other words, if an invention employs an algorithm that is easy to detect infringement, then the acquisition of an algorithmic patent should be considered.
The detectability of infringement of an algorithm patent is examined from two perspectives.
(1) Availability of the suspect product
To identify patent infringement, the suspect product must be found, observed, and analyzed.If an algorithm is for a device that is likely to be used only in-house, it is difficult to find patent infringement.
On the other hand, if an algorithm is for a device that is likely to be used in a device that is sold externally, the algorithm may be able to be analyzed.
(2) Possibility of analyzing the algorithm
In some cases, it is possible to guess the algorithm thinly just by checking what kind of data is input and what kind of data is output.On the other hand, an algorithm that is difficult to guess only by input/output, i.e., an algorithm that is difficult to understand what it is doing from the outside, is more difficult to analyze.
In addition, it is easier to identify infringement in the case of a simple algorithm patent. In the case of complex algorithmic patents, it is harder to be sure of infringement.
If the new algorithm is easily guessed by the user, and if you sell your own product incorporating the new algorithm, there is a high possibility that other companies will discover the algorithm.
Other companies may develop similar products by taking hints from your product, and there is even a possibility that other companies will obtain a patent for your algorithm. In such cases, it is better to aim to obtain an algorithm patent.
Notes on making it a secret technology
When an algorithm is a trade secret, we also consider whether it can be kept secret and for how long it should remain so.
(1) Possibility of guessing the algorithm
Even if you manage your algorithm as a trade secret, there is a possibility that the algorithm can be discovered by your product. If there is a possibility of detection, you should consider patent protection.(2) Possibility of leakage
If the algorithm is maintained as a trade secret, employees who know the details of the algorithm will be assumed to keep it a secret. The possibility that an employee may change jobs or leave the company must also be borne in mind. Of course, access to the engineering documents describing the algorithm must also be restricted.In daily research and development activities, various algorithms are invented. Some of these algorithms inventors themselves do not think are that great. However, self-evaluation and others' evaluation are different.
The "value of the invention" may be recognized a few days or even years later. Algorithms with low self-evaluation are inevitably more likely to leak.
One aspect of filing a patent application for an algorithm invention is that it allows the organization to share a sense of value that the algorithm invention is "valuable (enough to seek a patent)".
Should we obtain an algorithm patent?
Thus, algorithm inventions have risks both in filing a patent application and in not filing a patent application.
We will consider whether to file a patent application or not, based on the nature of the algorithm invention and the developments of other companies.
It is not possible to obtain a patent for an algorithm that anyone can come up with, but if the algorithm is at the level that other companies might possibly come up with, it is better to file a patent application.
Rather, such algorithm patents are valuable.
For advanced algorithms that no one is likely to come up with, it may be better to keep them secret.
You can keep it secret and file a patent application when the level of technology in the world rises, or in other words, when the advancements fade away.
Once a patent application is filed, if other companies do not seem to be catching up, you can withdraw the patent application just before publication and then file a patent application again with the same content. While repeating the process of filing and withdrawing the patent application, the patent right is obtained at the timing when other companies are likely to catch up.
Alternatively, you can decide that you will file a patent application in M years and prepare only a draft of the application.
If the algorithm is likely to be inferred from the company's products, it is better to seek legal protection than to keep it secret.
Niche algorithms for solving very specific problems may not be of interest to other companies even if a patent application is filed. If the algorithm is not of interest to other companies, infringement will not occur, so the significance of obtaining an algorithm patent will diminish.
Overcoming Weaknesses in Algorithm Patents
The greatest weakness of an algorithmic patent is that it is difficult to detect infringement.
By expressing the invention in a form that makes it easy to detect infringement, the weakness of the algorithm patent may be overcome.
An algorithm is a combination of "input, internal processing, and output".
While "input/output" is easy to identify, "internal processing" is difficult to see from the outside.
Therefore, we focus on "what is input" and "what kind of output" and define the invention without going into the details of the internal processing in depth.
If you can express your algorithm invention by focusing on inputs and outputs, your algorithm patent will be much easier to use.
It is also necessary to devise a way to avoid over-disclosing the entire algorithm.
Suppose that algorithm A2 includes processes K1, K2, and K3, but that the invention can be considered patentable (novel and inventive) with only processes K1 and K2.
Assume that processes K1 and K2 are essential components and process K3 is an optional component.
Assume that process K3 is highly valuable in terms of merchantability and patentability, but this process is difficult to identify as infringement.
In such a case, we may consider not including process K3 in the claims and the patent specification.
One approach is to aim to obtain a patent only for "processes K1 and K2," and if the patent application is rejected, to give up on obtaining a patent altogether.
Once, although it was not an algorithm invention patent, we received an invention proposal with a note that said, "Please do not include the data on page N in the patent specification". We were impressed by the careful handling of technical information that "we do not wish to disclose, but should convey to our patent attorneys in order for them to understand our invention".
It is not a simple matter to determine whether an algorithm patent should or should not be obtained.
・The nature of the invention
・The timing of the invention
Algorithm inventions are examined from the above perspectives to determine whether or not a patent application should be filed.
・What to include and what not to include in a patent application
When filing a patent application, the above should also be considered.