Concern of plagiarism if I publish the details of my invention

Question

I have a concern about plagiarizing if I publish the details of my invention (an algorithm) in patent description. If the patent application is approved, the details of my invention will be disclosed to everybody in the world. If somebody plagiarize, it will be time-consuming and costy if I file a lawsuit. Especially in China, the copyright is not respected and not well practiced. As a company in the USA, it is very hard or impossible for us to win the lawsuit. I am originally from China and understand the situations of China very well.

Somebody suggested me 1) file a patent application in one of the key steps but not the entire procedure in my algorithm; 2) cover a few of the key steps of my algorithm in the patent application; 3) provide misleading information about the key steps; 4) file the patent application after our product has some sales.

I am wondering if I can follow the above suggestions. Thanks for your suggestions.

Benson

Answer 1

I think you are using the word plagiarism to mean practicing your invent without your permission. That is not the correct meaning of that word.

To keep people from practicing your invention you can either keep it a trade secret or by using the patent system. If you are worried about people using your actual code then copyright can help. But if someone re-implements your algorithm copyright doesn’t help.

Intellectual property is territorial. A U.S. patent only prevents people from doing things in the U.S. To try to protect its use in China you need a Chinese patent. Enforcement of those rights in China and maximum penalties is not great but seems to be improving.

One view is that the market in U.S. and a few major countries is large enough to make exploiting your invention under the protection of patent laws profitable. In this view, don’t worry if people outside that scope can do it without compensation since your primary market is so large.

In disclosing your invention you need to show how to make and use it. That is worldwide. You can’t patent something that, as described, doesn’t work because you left out steps. Further, in the U.S., you must disclose the “best mode” of practicing the invention known to the applicants at the time of filing to prevent people from playing these games. If you optimize after filing there is no need to disclose that information to the patent office.

If you can cleanly separate your invention into two components that have distinct useful purposes you might be able to patent one and keep the other a secret.

Answer 2

You should not have any copyright issues because no patent application relating to a "software" invention is supposed to disclose the source code for the algorithm you are trying to patent. From time to time you can stumble upon a patent application that contains some source code or pseudocode, but it is rare to begin with and in any case only snippets of code are included in the disclosure.

The patent application should describe the algorithm as a series of actions/tasks, which is what might be patentable, and do so in a manner that the skilled person can e.g. hire a programmer and ask her/him to come up with the necessary code for reproducing the actions/tasks.

Since the source code will not be present in the patent application, nobody can copy it.