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If I made an invention of a patentable computer algorithm, and then implemented it, compiled and published a program online, while retaining the copyright notice like "reverse engineering is strictly prohibited" (which makes it protected from reverse engineering by law, at least European law afaik), would it amount to a pre-patent publication of the invention? Technically if nobody is legally allowed to study the program, they wouldn't have the means to derive at the invention? Of course they could study it "quietly" and possibly come up with their own algorithm, but my question is about whether the patent court would say that I've published it which makes it impossible for me to patent it (I do know about a 6-month post-publication period that still allows me to patent in some jurisdictions).

As a follow-up question, would the same case of pre-patent publication of compiled code help me to claim the prior art if somebody else then went on to patent it themselves?

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  • Is it a copyright or a patent issue? They are mutually exclusive. Commented Aug 1, 2023 at 14:09
  • @MindwinRememberMonica patent, i only said "copyright notice" as a place where i would say "reverse engineering prohibited" to indicate that the code is proprietary.
    – Harvey
    Commented Aug 1, 2023 at 14:50
  • @Mindwin If there is a document that would be prior art if published, then it is under copyright. Only the patent itself is not copyrightable once you have the patent.
    – gnasher729
    Commented Aug 1, 2023 at 15:27
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    I understand cross posting is discouraged but if put on SE Ask Patents you might increase the chance of getting a response from an expert by in European patent law. Commented Aug 1, 2023 at 15:49
  • @GeorgeWhite oh wow didn't know there's one thanks for the tip!
    – Harvey
    Commented Aug 1, 2023 at 15:52

2 Answers 2

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This supposes that the patentable concept can’t be learned form the operation of the whole program and hiding the invention while making use of the invention in public is not a disclosure.

However, in the US there is a famous case

In re Blaisdell, 242 F.2d 779, 783, 113 USPQ 289, 292 (CCPA 1957); Hall v. Macneale, 107 U.S. 90, 96-97 (1882); Ex parte Kuklo, 25 USPQ2d 1387, 1390 (Bd. Pat. App. & Inter. 1992)

that concluded a public demonstration that didn’t expose the inner workings did start the clock on a bar to patentability. See previous question https://patents.stackexchange.com/questions/20886/would-the-demonstration-of-an-invention-be-considered-public-disclosure

The answer (from me) has the caveat that this is a pre-AIA case and courts might come to a different answer under that current law.

The U.S. has viewed public use, especially commercial public use, as disqualifying (after a grace period) but the rest of the world puts its emphasis on actual disclosure of the inventive concept so this result might be different elsewhere.

One thought experiment would be to analogize with an article in a widely available journal with the words Don’t read the article that starts on page 19 on the cover. From a disclosure point of view I do not think that is different from it being possible, but illegal, to read.

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  • I witnessed a case with several excellent software developers involved. Someone said he had just read that Sun Microsystems had received a patent for XYZ. Someone said "but this can't be done... wait a second..." Within a few minutes three people had figured out how to do XYZ just from the knowledge that it was possible. When everyone believed it was impossible.
    – gnasher729
    Commented Aug 2, 2023 at 16:06
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I don’t think anyone anticipated that the “prior art” could have been created by illegal means. Something simpler, you printed a description of your invention and locked it into a safe. I crack the safe and publish that description.

IF this counts as prior art (a big if), and you can’t get the patent, and you lose money due to my illegal actions, then you can sue me for the damages.

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