Validity of patent on Merkle Trees Patent US4309569, published in 1982 and expiring 20 years later, describes an algorithm for creating hash trees (known as Merkle trees, after its inventor), used for data validation. How is this patentable? The US has granted "software patents" since the 70s, but my understanding is that this does not extend to obvious/trivial algorithms or mathematical formulae. In my view, hash trees -- and, thereupon, the application of the mathematical formulae presented in the patent -- are entirely obvious and non-novel. I believe this would be the view of any computer scientist or seasoned programmer; it therefore strikes me as unlikely that it was never independently reinvented (before or since), hence invoking a legal challenge.
I don't know the specifics of this invention, but it's important to remember that the novelty and non-obviousness of an invention is made as of the date of the patent application (or earlier priority date, not applicable here). In this case, that would be September 5, 1979. So you'd have to look specifically at what art existed as of that date (actually, one year prior to that date) and show that the invention was obvious and not novel in light of that prior art. It would take more than a general claim that it's obvious, for example. The practices followed by the PTO in determining novelty and obviousness in accordance with the law is set out in the Manual of Patent Examination Procedure, chapter 700 ("Examination of patents"). You might find that an interesting read. The current release (Ninth Edition, Revision 07.2015) is here; the edition in effect in 1979 would have been the Fourth Edition, here. As an aside, the term of the patent is not 20 years from publication. The term under today's law is 20 years from initial filing date, not from publication. Had that law been in effect for this patent, it would have expired in September 5, 1999 (which it actually did, as noted below). Prior to June 8, 1995, US patent term was based on the date of issue plus 17 years; in this case to January 5, 1999. But under terms of the 1995 law, any patent applied for prior to June 8, 1995 got the greater of those two terms; so we're back to September 5, 1999 again. (And just for completeness, there is also the matter of periodic maintenance fees that today need to be paid to keep a patent in force; but that didn't start until December 1980, and wouldn't have applied to this patent, which was filed prior to the institution of maintenance fees.)
The resulting figure could surely be covered by copyright, if it is original. A new set of folds to make a known figure might not be separately protectable under US law. In this news story A court in Japan is said to have held that: the folding instructions are indeed a copyrightable subject matter, because (i) the author’s selection of 10 out of 32 folding steps were subject to alternative modes of expression; (ii) the author’s folding instructions, including the organization of the diagrams, the texts, and the drawings, had elements of “style”; (iii) taken in its entirety, one admittedly found room for creative expression (Tokyo District Court Opinion: Case No. Heisei 23 (2011) (Wa) 18968 (Tokyo D.Ct., May 20, 2011). But it further held that the particular diagram displayed was not an infringement of the claimed source. In this tech dirt podcast a suit over an artwork derived from a folding pattern is reported. Tech dirt thinks it is an obvious case of fair use. The British Origami society says: The issue of how the laws of copyright affect origami diagrams and models is an important one. Groups such as the Origami Artists and Creators are working towards an internationally agreed set of guidelines. Dr. Robert Lang has presented his interpretation on his website. Until a common statement is agreed, we refer people to the terms in our constitution. (1) The Society and its Members shall respect all copyrights, registered trademarks and registered designs in all models, designs, diagrams, photographs, books and writings and shall observe the laws of copyright, registered trademarks, registered designs and patents and all other provisions relating to intellectual property which are applicable in all the separate countries throughout the World. (2) This article shall apply to all models, designs, diagrams, photographs, books and writings whether existing in writing or print on paper or any other hard copy or existing in electronic form, photocopy or microfiche in libraries, public or private archives or on the internet or on recorded discs or tapes of any kind or in any other kind of electronic record and whether made commercially or otherwise publicly or made privately. (3) Before reproducing any model, drawing, photograph or text contained in any publication, a member of the Society shall obtain the consent of the copyright owner before publication. (4) As a matter of courtesy, whether or not required to do so by law, the Society and its Members shall give proper acknowledgement to the original author of any model, design or diagram demonstrated or reproduced in any manner. Origami USA says that: OrigamiUSA is very concerned about protecting and respecting the rights of origami artists, authors, and diagrammers. While &quot;traditional&quot; origami models are in the public domain, the vast majority of published origami designs are of recent authorship and therefore cannot be published or used commercially without obtaining permission from their creators and/or diagrammers. It seems that few suits on origami copyright have been filed, and then appealed to where opinions are published and thus accessible to a non-professional's search.
The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage.
If the suit is to be filed in the US, the first step is to officially register the copyright. No US copyright infringement suit can be brought until the copyright has been registered. The registration process includes a formal declaration as to who the author is (or authors are). (I believe this statement is made under penalty of perjury.) Once the registration issues, the certificate of registration is admissible evidence of the facts stated in it in a us court. Indeed 17 USC 410 (c) provides that: (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. In other countries, the testimony of the plaintiff in a copyright infringement suit is itself evidence that the work was created as stated. In either case, it is possible for the defendant to challenge the assertion and claim that s/he is the actual author. Showing when and where the work was first published can usefully corroborate the plaintiff's testimony. Having included a copyright notice in the initial publication may be of value, but if the notice only lists the pen name, it is not of much value. Records of the platform on which a work has been published may help in verifying the identity of the author. So may the testimony of others who saw or read the work, or who were told about it by the author. An author's own copies may be of value, if they carry a timestamp, as computer files generally do. But computer timestamps are not usually secure. Timestamps on email generally are reasonably secure, and could establish that the content existed and had been transmitted on a specified date by a specified person. But none of this will matter unless the defendant claims that the plaintiff is lying in claiming authorship. Unless that happens, the plaintiff's testimony will usually settle the matter. A person whose work seems to have been infringed would usually be wise to consult a lawyer with experience in copyright suits. Such a lawyer could advise if it is wise to bring suit at all, and if it is, what evidence will probably be needed.
If it's patented then it doesn't matter that you independently came up with it. Most software is not patented, though. Most developers do not even think about patents when writing code. In theory you could spend your time keeping up to date on software patents so that you avoid infringing. But this probably only makes sense for specialists who would want to read the latest patents in their field anyway. All software is protected by literary copyright, though. In this case they will try to prove that you did not independently created it, and did copy it. Whelan v. Jaslow in 1986 ruled that structure, sequence and organization of a computer program were protected by copyright. So you could be liable even if you did not just copy and paste sections of code. But even if you're worried the court would get things wrong and think you copied a program when you never even saw it in the first place, there is really nothing you can do about it.
the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply &amp; demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled.
Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms.
There are a tangle of issues going on in this question. First, distribution of hardware-related code in commerce might very well void any right you have to patent the software and might bring it into the public domain for purposes of patent law. Publicly disclosed inventions, even if protected by copyright, are part of the &quot;prior art&quot; and can't be protected by patents. Second, you have to disclose the material ideas in an invention in order to patent it, in your patent application. The bargain of a patent is that you get protection for about two decades in exchange for contributing your idea to the public domain when it expires. Third, usually people protect software with copyright rather than patent, although there are pros and cons to each approach. Fourth, if someone knows enough about your invention to subpoena the place where you store it, you have probably disclosed too much information pre-application to patent it. Fifth, usually the &quot;real&quot; target of a subpoena gets notice of it and an opportunity to defend against the subpoena (e.g. for improperly disclosing a trade secret) before it is carried out, but the same does not apply, for example, to National Security Letters under the Patriot Act (which are supposed to be used only in national security investigations or counter-terrrorism operations, but might be abused). Certainly, an ordinary person can't issue a National Security Letter for private commercial gain without corrupt government assistance. Sixth, to issue a subpoena, there must be some pending case to which someone can claim the subpoena is relevant. A random person can't just subpoena information because they want to. Seventh, even if a server host isn't based in the United States, that doesn't mean that there isn't some means by which a court might assert subpoena power over information on server host. There are many legal &quot;hooks&quot; that could apply. Eighth, defending an isolated subpoena isn't terribly expensive. Typically, you'd be looking at a legal fee in the $1000 to $5,000 (U.S.) range, which is much, much less than the dollar cost of patenting an invention in any country. In short, while there are pros and cons of using a U.S. based server host, people in the IT industry routinely attach far too much importance to this fact which is only very rarely an important one legally. There are many other issues which are much more important in this fact pattern to your ultimate goal.