If I write an application here in Europe, where we don't have software patents, would an American company be able to apply for a US patent on a technique or algorithm used in the application? What evidence would be required to prove prior art in the event that this happened?
migrated from meta.patents.stackexchange.com Sep 21 '12 at 20:00
Current U.S. law codified in 35 U.S.C. 102 identifies the available foreign sources of prior art as items "patented or described in a printed publication in this or a foreign country." Under the new law being implemented in 2013, US patents will also be invalidated by prior foreign public uses, sales, and offers for sale.
So, lets say you have an unpatented computer algorithm developed in Germany and the question is whether that program can be used as prior art against a US patent. The answer is maybe, depending upon what has been done with the algorithm.
If the answer to any of these questions is "yes" then the algorithm [or publication] can work as prior art against the US application. Otherwise, the answer is probably no. Under the new law, it might also count as prior art if publicly used or sold anywhere in the world.