0

I have 2 questions regarding algorithm "tangibility".

Let me give an example. Suppose I had this great algorithm for music processing, and at the heart of the algorithm is this special set of mathematical formulas I put together for the purpose of superior music processing.

Now, my understanding is that algorithms, including those based on math, are "abstract ideas" or something "intangible", and cannot be patented UNLESS disclosed with details of a computational hardware implementation of said algorithms, at which point the entire system (the algorithm + its hardware implementation) becomes tangible, and thus patentable.

Question 1: Regarding the tangibility issue, does it mean that the patent office/courts/legal system need me to demonstrate that the algorithm can indeed be implemented by some 'physical' means? Can this really be the entire issue? Those guys are just too dumb to realize that algorithms are almost always implementable by some computing hardware? (be it a PC, the cloud, HPC, FPGA, etc).

Question 2: Ok, so suppose I went ahead and disclosed a "tangible" system made of both a (mathematical) algorithm and the hardware to implement it with, but since it's almost inconceivable to cover every possible hardware implementation of the same algorithm, my lawyer didn't properly cover the aspect of, say, an FPGA implementation of my algorithm. But, other than this little mishap, the patent was issued without any troubles.

Now consider the following situation: Someone created a "system" made of the CORE algorithm disclosed in my patent but they used an FPGA to implement it! Does this count as infringement? Yes/No?

  • You may want to have a look at the european patent law regarding software/algorithms. In short, abstract concepts like algorithms are disregarded for patentability and the rest of the invention is judged on it's own. It's not fully the same as in the US, but it's atm imho more understandable and less “in the making“. It might give you an idea of the thought processes. – DonQuiKong Feb 25 at 23:17
2

First off, I am not a lawyer. However, I am an inventor with a couple of algorithm based patents. This is a moving target and the rules may have changed since I obtained my patents. My understanding is the issue is not related to tangible vs. non-tangible, but abstract vs. specific. An algorithm by itself is abstract and not patentable. The use of an algorithm to perform a specific task may be patentable assuming the other aspects of an invention are met (utility, novelty and non-obviousness).

Regarding your second question, infringement is always about claims. Your patent has specific claims which protect the invention. If someone can avoid implementing each and every aspect of your claims then they can avoid infringement. This is exactly the same as for any other invention.

Things are complicated with software patents so I highly recommend you consult with an actual patent attorney well versed in the field rather than relying on internet Q&A sites.

  • thanks for your response. i do intend to consult a lawyer, but i wanted to know if it's even worth it to pay a lawyer for a consultation if the answer to my second question was 'no'. What I understood from your answer was 'it depends' on the claims. Well, for the few algorithm patents I did read, it seems that there are claims that recite the algorithm itself independently from the computing hardware, and then there are those claims that connect the two together. So it would seem that the answer to my second question is 'yes', which leads me to my next comment. – seeker Feb 25 at 19:59
  • If some claims of an algorithm patent do recite the algorithm itself independently of the hardware, then there seems no reason to bother oneself with disclosing various possibilities of a hardware implementation of the algorithm. In this case, we should just concentrate on one platform (say a PC with CPU/memory/storage), instead of mentioning other stuff like a GPU, cloud computing, etc. Does that make sense? – seeker Feb 25 at 20:04
  • Also, you wrote: "The use of an algorithm to perform a specific task". Yeah, I read that somewhere, and of course, the task of my algorithm is very specific indeed (and useful, and novel and non-obvious). It's just that I'm really bothered by the seemingly retarded requirement of 'detailing' the hardware implementation of the algorithm (in order for it to be "tangible"). Had it not been for this requirement, I could have at least written the PPA myself without incurring unnecessary lawyer costs. – seeker Feb 25 at 20:10
  • The other disturbing thing about all this weirdly detailed disclosure of the computing architecture we find in some of the algorithm patents, is the disclosure of too many possible hardware variations, as if the lawyers are concerned the algorithm itself cannot be independently protected from whatever hardware is used to implement it... – seeker Feb 25 at 20:19
  • @seeker If you have a specific patent in mind, it would be helpful to list it. It's possible older patents might just be on an algorithm, but now you shouldn't find ones like that. In my patents, the algorithm is defined in the claims as applied to the analysis of real time PCR reactions. I have separate patents for quantitative and qualitative results generation. No specific hardware implementation are specified in the independent claims. There may be hardware specific dependent claims. Reading claims is tricky and lay people are often likely to believe they cover more than they do. – Eric Shain Feb 25 at 21:57

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.