If mathematical equations are not patentable, why are algorithms patentable? I'm new to the domain of understanding the law behind patenting, and I want to start a company that uses machine learning algorithms. Unfortunately, almost every concept is patented by the top companies. Aren't computer algorithms mathematical equations? Any algorithm can be represented mathematically. People may argue that even physical objects like engines can be expressed mathematically, but physical objects are obviously different from mathematical expressions. But how are algorithms different from mathematical equations? Many machine learning algorithms exactly satisfy the definition of mathematical equations, as they were directly derived from statistical methods used in the past (which I believe were not patentable before the software era). Of course, an animation created by an artist, cannot be considered as a mathematical work, even if the software uses multiple mathematical methods to make it function. I have been reading the article in this link: https://www.gnu.org/philosophy/software-patents.en.html and here the author states that the public key encryption method was patented. Don't encryption algorithms precisely come under the definition of mathematical equations?
Aren't computer programs mathematical equations? Any program can be represented mathematically. . . . But how are programs different from mathematical equations? . . . Don't encryption algorithms precisely come under the definition of mathematical equations? In the context of patent law, the "mathematical equations" that aren't patentable are those that are discovered and are mathematical laws of Nature. For example, you cannot patent a mathematical equation which is the equivalent of the Fundamental Theorem of Algebra (which tells you how many solutions there are to all possible polynomial equations), because it is a statement about what is fundamentally true about something, not about how to do something that works better than other possible ways of doing something. An algorithm, in contrast, in patent law, is a method of doing something that is not inherently the only way of doing something as a consequence of the laws of mathematics or other laws of Nature (although it could very well be the "best" way of doing something). For example, the simplex method of linear programming would probably be patentable if it hadn't been publicly disclosed prior to anyone obtaining a patent on this method. Most computer programs are the digital embodiment of algorithms, rather than of equations that were discovered that represent fundamental truths that are always and uniquely true about numbers or reality. Notably, recent governing U.S. Supreme Court case law has now made it categorically true that there mere fact of embodying an algorithm or other business method in digital form with a computer program, as a matter of law, does not make an idea that would not be patentable if not embodied in a computer program patentable. The underlying idea that is embodied digitally in a computer program must, itself, be patentable. A method for doing something, even if it can be or is represented mathematically, is not inherently not subject to being patented. But, not every method of doing something is patentable either. The "business method" must still clear the hurdles of being original (you can't patent ideas that have already been disclosed publicly by someone else, or by yourself for that matter), of having "utility" rather than merely aesthetic value, and of not being obvious to a person of ordinary skill if the field in which the invention arises. For example, anything that would follow as a lemma or corollary of an existing aspect of prior art would not be eligible for a patent either, even if it is novel and useful. Now, there is some room for sophistry here. For example, you could call a computer equation that calculated a Lorentz transform a method for calculating the relationship between two coordinate frames to which relativistic mechanics apply. But, because that relationship is a law of Nature which is always true, even if it isn't the only means to calculating that relationship, it would not be patentable even if it were not prior art. I want to start a company that uses machine learning algorithms. While it is a risky business model, it is worth considering that over the last 10-15 years the legal threshold necessary to patent a computer program has gotten much, much higher. The Patent and Trademark Office used to routinely grant these applications, but due to a string of important statutory and case law changes, software patents are now denied at a very high rate, and existing software patents are routinely determined to be invalid in litigation. If there is serious reason to doubt that an existing patent that would be important for your business is really patentable, you should consult a patent lawyer to consider the possibility of bringing an interpartes review action in the Patent and Trademark Office to have a previously issued patent revoked. This is an expensive and time consuming process, but it is much cheaper than losing a patent infringement lawsuit after having invested time and money into running a business using a patent you know to be infringing because you believe that it won't hold up in court.
"that copyright is not automatically conferred and that there is a process that must be followed" No, this is completely backwards. Copyright is automatic (in most places), but there is a formal process if you want. Copyright happens the moment that the work is created. In the US, if you want to sue somebody for copyright infringement, you have to register your copyright, but you still have one regardless of registration. Modifying the video is a derivative work and must be licensed/released from the original author/copyright holder. From copyright.gov: When is my work protected? Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. Do I have to register with your office to be protected? No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”
Software doesn't infringe any patents. Creating a product that includes the software may infringe the patent, and may infringe that patent because the software is included, but the software itself doesn't. Software on its own doesn't have any effect that could be patented, only as part of some machine. On the other hand, if you want to distribute software that is under the GPL v3.0 license, then a requirement is that you give everyone a patent license for all patents that would be infringed by using the software (as part of some machine), and if you are not the patent holder, then in practice that means you are not allowed to distribute the software. With your grand plan that you write software and then let the end users do the patent infringement, that will backfire in two ways: First, you'd be likely sued for contributory patent infringment, because it is you who enables the patent infringemnt. Second, you can be sued for copyright infringement because you have no license that allows you distribution of the software, depending on the Open Source license used.
Games can be protected by patent. You get some protection through copyright, but only on things like artwork and the precise text of the rules; someone could copy the ideas of the game with different artwork and not violate your copyright. You would need a patent in each country you want to protect it in. In general patents are expensive and complicated. Here is some general guidance on the relevant law in the USA, and how it applies to video games. If you hire a developer you can do so with a non-disclosure agreement (NDA). This is a contract requiring them to keep your ideas secret. Here is an article about using NDAs when hiring a contractor, but its a complicated area of law and you might be better hiring a lawyer to draft one for you.
Software cannot be patented although it does have copyright. Hardware can be the subject of a patent, however, that would not cover any software aspects such as the programming built into a PROM. While it is possible to render any software into an integrated circuit, practically, anything simple enough to make this feasible is probably too simple to patent.
Copyright never protects ideas or processes, it only protects expression: words, images, and sounds, some of which may describe ideas. But when a work is nothing more than a translation of an idea into words, with no independent originality -- when almost anyone would use more or less the same way to describe the idea, then the work will not be protected by copyright at all, as it is not considered an "original work". Computer code that implements an algorithm often falls under this rule. It is my belief that the code shown in the linked SE thread would fall under this rule, and would not be protected by copyright at all. If this is correct, then anyone may share such a program with no copyright concern.
You need to check if the original game developers patented the mechanics/rules of the game. For your example, Monopoly was patented, but expired in the 50s and while it would not be a copyright violation to mimic the rules/mechanics, it would be a different intellectual property violation (patent infringement). Spry Fox vs LOLAPPS is also relevant as it extends copyright protection to the implementation of an idea, but ideas (like rules/mechanics) cannot, by themselves, be copyrighted. This means that there is an avenue for the original developer/company to sue even if the visual/audible aspects are different, but the overall gameplay is the same. Also see Tetris Holding LLC vs Xio Interactive Inc. as it relates to the visual aspect of the game.
The problem is that open source licenses incl AGPL have legal force because copyright prevents copying + modifying software by default (software is treated as a “literary work” and therefore enjoys copyright protection). But copyright on datasets and ML models is very different – if it is even recognized at all. Thus, similar copyleft techniques would only work in particular jurisdictions. For example, the EU recognizes “database rights”. A copyleft license that accounts for this is CC-BY-SA-4.0, meaning that in an EU context, databases based on the original database would have to use the same license. However, database rights are not recognized in the US (facts are not copyrightable, and the “sweat of the brow” doctrine is not recognized). Thus, the CC-BY-SA-4.0 license would not have any copyleft effect with respect to databases in an US context. Independently of copyright in the database as a whole, the data in the database might be copyrighted material, for example if the database contains text or images, complicating matters further. Machine learning models derived from a data set are much more difficult. Clearly, ML models that have been trained are not a creative work and are therefore not eligible for independent copyright protection. At most, it can be argued that the model is an automatically transformed version of the input data, so that copyright in the input data implies copyright in the model.1 Perhaps hyperparameter choices could reflect some creative input. This is very much an active topic of debate. Given this uncertainty, it would be impossible to create a public license that works reliably. 1. An interesting discussion topic is the potential effect on Microsoft's Copilot ML model which was also trained on GPL-licensed source code. Instead of deriving force from copyright law, it would be possible to impose conditions via a contract, i.e. EULA-like terms that only provide access to the material after the terms have been accepted. But again, this is difficult. Contract law differs wildly between jurisdictions. For example, a contract is defined by the “meeting of minds” in some jurisdictions; by offer, acceptance, and consideration in others. But how does such a contract ensure appropriate consideration? How can acceptance be ensured if the material is publicly available? For these reasons, I think that unless broad international agreement emerges about IP protections for machine learning models, such a copyleft system for ML models is impossible. It is worth noting that the lack of such protections is probably quite good for innovation and research, since researchers are free to improve each other's work without legal concerns. The idea of copyleft is a hack to subvert the “everything is forbidden by default” system of copyright, but “everything is allowed by default” might be better.2 2. To continue the Microsoft Copilot example: some copyleft advocates like Bradley M Kuhn are sceptical about Copilot's GPL compliance, but remind us that copyleft maximalism means copyright maximalism, and that this is not the goal of open source. https://sfconservancy.org/blog/2022/feb/03/github-copilot-copyleft-gpl/