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Hi Ask Patents community,

I recently came across a software product in my industry that I thought was interesting. I decided to look into how their software works and ended up discovering their US Patent.

I have a data science blog where I post about topics I'm currently learning and I thought working through their algorithm as a post would be fun. The blog post would step through their algorithm explaining the math and then I would reproduce it in code using an open-source programming language. As I get closer to bringing this post to fruition I am unsure of the legal side of this (as well as the ethical).

So the main question is: Is it illegal to reproduce a patented algorithm and share that to the public via a blog?

  • I fear this is more a question of copy write than patent law. A patent is a public document which is required to describe the invention adequately so that someone skilled in the art could understand it. You might need to post this question on the Law SE site since this one doesn't handle copy write questions. – Eric Shain Jul 26 at 22:37
  • Thanks @EricShain, I'll do that. I wasn't sure if my blog post would be considered patent infringement. I found this definition of infringement online: "Infringement of a patent is the unauthorized making, using, selling, or importing of the patented invention within the territory of the United States, during the term of the patent." I thought maybe this post would be considered making the invention. I wasn't sure. – joshualeond Jul 26 at 22:49
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    I don't think it is patent infringement if you don't make or utilize the invention. I don't see how explaining and critiquing an algorithm is making anything except a blog post. You might want to avoid actually implementing the code in an executable manner. However, I'm not a lawyer so my opinion isn't very authoritative. – Eric Shain Jul 26 at 22:51
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You need to look at whether you are simply describing how the patent functions or whether you are actually infringing the patent itself.

You said you want to reproduce it in code - would that infringe a single independent claim of the patent? If so you are very likely infringing the exclusive rights granted to the patentee. However, some jurisdictions have research exemptions - in some jurisidictions, it is a defence to conduct research - however, you may be doing the research publically and that might mean you cannot rely on the exception.

As to the copyright issue, you would have to look at the law that applies. I am from Australia and we have a review/criticism exception to Copyright infringement. But it is qualified and not all jurisdictions have that exception.

  • Thanks Nicole, I've decided not to finish and release the blog post. I was already worried it may upset the company and definitely don't want to fall into any sort of legal situation. – joshualeond Jul 30 at 15:05
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A patent allows its owner to control making, selling, offering for sale, importing and using. You are not doing the first four things but you may be "using" the invention. The law also covers "indirect" infringement. There are cases where party A does not directly infringe but where they have run into problems for encouraging infringement.

35 U.S.C. § 271(b) covers situations where one actively induces the infringement of a patent by encouraging, aiding, or otherwise causing another person or entity to infringe a patent. A potential inducer must actually be aware of the patent and intend for their actions to result in a third party infringing that patent. From Wikipedia -

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Provide a credit or acknowledgement in the reproduction wouldn't that also work and i thought if the reproduction has any type of "gains" that is where it becomes a liability and dangerously complicated.

  • Unfortunately, that is not per se allowed by patent law. – DonQuiKong Jul 27 at 18:13

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