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In general, based on my non-lawyer reading of patents, most software patents cover doing the described algorithm on a computer. Are there any legal issues at all in doing an algorithm by hand, on pencil and paper?

What if, instead of pencil and paper, you used a general purpose computer mathematical environment (e.g. Wolfram Alpha) to interactively perform each step? This doesn't seem very different in character to me than performing the algorithm manually. Is there any precedent for this?

Of course, there are all sorts of other gray areas - for example, what if you designed a custom interactive program that used ideas from the patented algorithm to "give hints" to the user as to what to do next, without actually performing those steps? Have any of these boundaries of what it means to "perform" algorithms come up in real cases?

This question is asked purely in the spirit of intellectual curiosity - I am not asking for legal advice on a particular situation.

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No. If a patent claim was so broad that manually performing the claimed algorithm by hand would infringe it, the patent claim would be invalid (and so could not be enforced).

This is reasonably clear (in my view) from the line of US Supreme Court decisions beginning with Gottschalk v. Benson, 409 US 63 (1972), which provided:

It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that [if the patent were allowed], the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.

In other words, it is not possible to patent the algorithm itself.

Benson is still good law, and was applied by Supreme Court in most reason case on this point, Alice Corp v. CLS Bank International, 573 US ___ (2014).

Benson also stands for the principle that simply applying an algorithm with a general purpose computing environment (like Wolfram Alpha) is not enough to lead to a patentable claim. This is tidily restated in Alice:

We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

Would the interactive program you mention be enough? My feeling is no (since the novelty is still just the algorithm), but this is only a feeling: I don't believe this has been properly tested yet.

  • Thanks for the well-researched answer! It seems that patents of this type (abstract algorithm + "do it on a computer") are unfortunately incredibly common. – rmcclellan Dec 4 '15 at 19:03

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