Software Patent Infringement: Everything You Need to Know
Software patent infringement is something that all software companies should be mindful of when creating, using, manufacturing, or selling a piece of software. 3 min read
Software Patent Infringement
Software patent infringement is something that all software companies should be mindful of when creating, using, manufacturing, or selling a piece of software. Most businesses operating in this sector use a combination of many things to come up with new and innovative software programs, methods, and systems. When taking all of these together, there can be pieces of one software program that may belong to another software program. This, in and of itself, is not infringement. But you’ll still want to keep in mind the different possible items that could be duplicated from one piece of software to another.
Potential Duplication Issues
- Off-the-shelf computer code analysis programs
- Source code correlation
- Source code cross-correlation
- Object code correlation
Correlation itself consists of three elements:
- Statements: Statements are derived from a control structure.
- Comments: Comments are used to document the code.
- Strings: Strings are used to generate messages to users.
Even within these three elements, statements can be broken down into instructions and identifiers. The instructions are composed of certain words. Identifiers include labels, functions, and the like.
While all of this information can be confusing for someone who is unfamiliar with the software coding process, it is all too common for those operating in this industry. The correlation between source code and object code can be difficult. Once the research approach has reached a successful output of object and source code, you’ll have been successful at creating a software method or process. But it is not guaranteed that this process isn’t already protected by a patent.
While there are multiple innovative approaches that one can take to create or implement a software program, there are times when your innovative approach has achieved the same result as a software program that is already in use and already protected by a patent.
While there are many potential issues that you could come across when researching and developing a new software method or process, there are software plagiarism detection tools out there that can assist in determining what pieces of software, along with what methods or programs, are already being used and are protected by a patent.
If you come across this duplication issue, you’ll have to change the coding either by renaming it, reordering the code, changing the instructions that were placed into the code, and creating new comments, thereby generating a brand-new software method.
What Happens If a Correlation is Identified Between Two Software Methods?
This doesn’t necessarily mean that infringement has occurred. There are six reasons for correlation, and these include:
- Third-party source code, i.e., open-source code or commercial source codes.
- Code generation tools, meaning that both companies utilize such tools, i.e., Microsoft Visual Studio.
- Commonly used elements, i.e., ‘count,’ ‘index,’ or other standard terminology in this type of industry.
- Common algorithms used, in which such algorithms are taught to all software experts, so such persons are familiar with the same algorithms.
- A common author, meaning that a software expert might work for Company A and then leave to go work for Company B. At Company A, the individual created a software program. At Company B, the individual created a very similar program, not realizing or remembering (if time has passed) that the identical or similar program was created at Company A.
- Blatant copying, which would amount to plagiarism and infringement.
Only if the first five can’t be met will a court determine that the correlation amounts to patent infringement. Further, the court will look to additional factors, including whether or not the correlation is substantial.
Effects of Patent Infringement
- Patent lawsuits can be very expensive; millions of dollars with no guarantee that either party will recover attorney fees.
- Even if you inadvertently infringe upon another patent, you could be held liable.
- Today, there are so many software patents that it might be very hard not to infringe on another’s software invention.
- Software patent infringement is popular, particularly for companies like Microsoft, Apple, and Samsung; suing one another for mobile phone patent infringement.
- Keep in mind that software can obtain both patent and copyright protection. This could cause additional legal issues down the line if a copyright infringement suit is also brought against you.
If you need help learning more about software patent infringement, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.