If I am a UK-based software vendor or 'software as a service' company, what are the legal implications of including academic research algorithms in products sold to European and international clients?

In particular I am focussed on Machine Learning algorithms. I notice that there has been a lot of discussion about Google attempting to patent some of their algorithms e.g. here.

Some of these algorithms are really just a composition of previous ideas and not utterly original. Even so, the patent process at the moment enables large conglomerates to monopolise the ownership of algorithms. You only have to do a Google patent search for 'neural networks' or 'gradient descent' to see how many patents are held by IBM, Microsoft and Google et al.

But many companies, including large numbers of tech start-ups, already run software behind the scenes that undoubtedly use such algorithms; have you heard of any cases where those companies have been sued? There also seems to be a lot of ambiguous advice concerning the commercial use of such algorithms. Can anyone give me advice on what sources would help me explore all legal issues associated with such commercial activities? What are the risks for going ahead and using algorithms that may in the future be patented? Should these legal issues be viewed on a case-by-case basis, or are there rules of thumb that can be followed?

  • 1
    This is actually a very good topic. However, as I started to prepare an answer, I began to feel that the question as currently worded may be a little too broad to be satisfactorily answered. I wonder if it might be beneficial for your question to be split into a few different ones (such as one on the commercial use of algorithms, one on identifying legal issues, one on using an algorithm without knowing you are free to operate). – Maca Feb 5 '16 at 14:14

'software as a service' may not be patent-able but rather copyright protected. You have stumbled upon a gray area of the law when it comes to algorithms.

Fortunately the many of the patented algorithms are old and therefore expired. Any new patents referencing this prior art may be weak and not defensible although these big players do have deep pockets for litigation.

You risk being sued if you use any of them commercially. A longstanding common-law exception called "the experimental use exception" allowed for de minimis use of a patented invention when the purpose is experimental. Over the last 20 years though the courts have all but eliminated this exception.

http://www.lexology.com/library/detail.aspx?g=c3027940-950f-49fd-a49e-8672fea1b667

http://www.ipwatchdog.com/2015/07/22/a-strategy-for-protecting-software-claims-from-invalidation-under-the-algorithm-requirement/id=59586/

hope this helps.

  • regarding patents, there is no "fair use" doctrine as there is for copyrights. Patent infringement does not depend upon commercial use. – George White Oct 31 at 19:41

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