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I have been considering a wikipedia style system for code (software), and am trying to figure out what the patent implications are. Aside from the risk of accidentally violating someone else's patent (that would be a separate question), I wonder if patents can exist at all in that system. If all changes are made online, and published basically immediately online, and mostly peer-reviewed and possibly built on almost instantly, does that inherently preclude the contributor (inventor) from patenting their work?

On the one hand, it sounds like it might be patent-able, because the "inventor" is an identifiable contributor, and they would normally have a one year grace period that they would be allowed to file a patent.

But since they are contributing to an existing system, within the context of a public forum, and most likely with help (in the form of other users' contributions), I would think that would make it prior art that precludes filing a patent even within the 1 year grace period after publication.

Can anyone clear that up?

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I guess this could be asked as just, "Is everything on github prior art?" –  Abacus Nov 20 '12 at 19:11

1 Answer 1

up vote 4 down vote accepted

Three part answer:

(1) Grace Period: The inventor's own pre-filing disclosure (or other disclosures stemming therefrom) will not invalidate the later-filed application so long as it is filed within the one-year deadline. This is true even when the disclosure is very public and without any claim-to-patent-rights made in the disclosure. One major caveat is that most other countries do not follow this same grace period. On the other hand, additional contributions suggested by other folks will count as prior art.

(2) Implied License: A court could potentially hold that the inventor's participation in the forum created an implied license -- giving other forum members the right to use and build upon the invention without paying any royalty. Most of the cases that would be relevant to this idea come in the area of shop rights and standard-setting negotiations.

(3) Solution: A good solution is for you to implement rules of practice via the terms of use of your site and to use a click-through licensing scheme to ensure that all users are contractually bound by the agreement. Depending upon what result you want, you could force all participants to promise not to file for patent protection on their suggestions. Alternatively, you could make clear that patents are OK and that there is no implied license.

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