Can GitHub code be considered prior art? What if its in a private repository?

Question

I may file a patent in the future that relates to a user interface on smartphones. In the meant time, I am building the algorithm stored in a GitHub repository. My question is:

1. Can I use this GitHub page history to prove I am the original inventor? I.e. if someone else tries to file a patent before me but is shown to have invented it at a later date than when I started, will the GitHub page be enough to grant the patent to me?

2. I have trouble understanding the grace period. If I publish an art and have not filed for a patent within the year, does that mean anyone else can file the patent, even though the art verifies that I am the original inventor?

3. What constitutes an art being "published"? If I create a private GitHub page, and one year later change it to public, is the date of publication the date I created the GitHub page, or the date that I set it to public?

Answer 1

I did a little digging and found this post:

Register prior art, but not wanting a patent

In case it might help anyone else, I'll answer my own questions for archival reasons. If I got anything wrong, any help correcting would be much appreciated.

1. Yes, GitHub can be used as a published prior art.
2. If I wrote the code on GitHub, and I was the first that invented it, no one else but me can file the patent. However, I only have 1 year from the publish date to file that patent. After that year passes, no one can file the patent (I assume its under public domain?)
3. From the URL I linked, it seems like the GitHub page must be publicly available for it to be considered a published prior art. I'm not sure on the specifics if the repository was initially private, then set to public, then set to private again some time later, then public again. I assume the publish date of the prior art is on the first time it was set to public (so the 1 year grace period would start ticking on that time).

Answer 2

Github is apparently not considered prior art by the USPTO.

See the case of Microsoft patenting RANS while it was already readily published and being in use: https://encode.su/threads/3863-RANS-Microsoft-wins-data-encoding-patent?p=74250&viewfull=1#post74250

I am in contact with EFF regarding this patent, they might help somehow, e.g. finding a lawyer who could make it for a lower cost.

Turns out github is not prior art for USPTO! Patent officers often have no computer science education (granting 20 year monopolies!) I don't understand it, couldn't believe it ... but thousands of programmers publicly sharing only source code seems to have zero protection from anybody copy&pasting their code, ideas into a patent! Please share your new ideas also in a different way like arxiv ... What is non-github prior art for rANS with Markov models?

And also

I have talked yesterday with EFF lawyer and was told that, while they try to change it, for now github is not prior art for USPTO. If going to court, it might change - but it is hundreds of thousands of dollars and years. I was clearly told that using github as prior art e.g. for this reexamination makes no sense.