Legal Question in Intellectual Property in Indiana

HAVE you invented one? Is it a one-way or two-way?

Do you want to protect a program that encrypts / decrypts or just the algorithm itself?

I have over 20 years of software development experience behind me -- I'm still an active programmer, but I'm also a lawyer, so I take a keen interest in these things. I've had a keen interest in encryption algorithms, too.

Patents last about 17 years after which anyone can use the algorithm without paying you a royalty of any sort. Patent law requires disclosure -- you essentially make your algorithm public in order to receive the patent. Did you know that? Copyright, by contrast, is a) longer-lasting (start with 28 years and extend that even further if you like) and b) allows protection via secrecy. Keeping secret what your magic encryption machine does internally gives you the benefit of trade secret law as well, and allows you to hire people and get them to sign non-disclosure agreements which are all enforceable -- well, I said "allows" but maybe I should have said "requires" instead. Both a privilege and a duty, so to speak.

Patents are much harder to obtain than copyrights. You generally have to prove that your algorithm is really strikingly new technology; slight tweaks to existing knowledge won't do the trick. Part of the job to get the patent is to research all existing patents of a similar nature and prove that yours is really unlike those and is genuinely novel. So it is expensive. Even if it is granted, it can be defeated in various ways, for example, by someone who shows they were already using it before you came along.

Tell me some more about the features of your algorithm. (But don't tell me what it is in this forum!) What makes it better than what's out there already? Is it commercially viable? Is it tailored for a particular use (e.g., credit card number transmissions across the internet)?

Are you a Mass. or an Indiana resident? What's your connection to those states? (By the way, I live in Mass. but my family is from IN and most of my money is there; I visit every year or so.)

Patent law is federal, copyright law is federal, trade secret (and other similar laws) are state law.

Feel free to give me a call or to send your reply (if confidential) in PGP-encrypted format. I think my Eudora PRO program decrypts it automatically.

Protecting an encryption algorithm

Encryption algorighms are a bit tricky to patent, because of the ability to be used in a military situation. All US Patent applications are screened to see if the application has military applications, and if the application does, there may be a secrecy provision placed on the application. The makers of PGP (Pretty Good Privacy) ran into a number of difficulties with their product, and with the government, because their encryption is so good (military grade good). If you wish to patent an invention, you can either try to do the application work yourself, or you can work with someone who is licensed to represent individuals before the United States Patent Office. An attorney must pass a separate exam to become licensed, so if you are dealing with attorneys or patent agents, be sure to ask if they are licensed to represent clients before the Patent Office.

A patent lasts 20 years from the date of application (it used to last 17 years from the date of issue, but no more). It typically takes between a year and several years to obtain a patent (longer for biotech inventions). A patent cannot be renewed, unless by an act of Congress (and these are very, very rare).

If you disclose your invention to the "public", you must make an application for a patent within one year of that disclosure, or you cannot ever get a patent. Disclosing to an attorney for the purposes of getting legal advice does not count, but disclosing to an inventor's club to get advice on how to proceed is considered a disclosure.

An algorithm is not patentable. A device or program that does something with that algorithm may be patentable. This was the original basis by which the Patent office would not patent software inventions, since the logic said that all software is just algorithms, and algorithms are not patentable inventions. It is all in the way you present the invention to the patent office, and one of the reasons why you should seriously consider working with a patent specialist. I specialize in computer law and patent/copyright/trademark law. I have spent 25+ years in industry with HP, DEC, Xerox, TI, and others -- and I have national credentials for software work I have done. I have held a secret security clearance, and I would be able to help you with your invention, if you desire that.

This message is provided to assist you in structuring your thoughts when you speak with an attorney about your situation. I am not your attorney, and you are not my client, so this is not legal advice. Legal advice can only be given after a careful interview of the client by the attorney, and I have not had the opportunity to understand the significant issues that I must understand to render legal advice. You should contact an attorney in your state to discuss your situation. That attorney can give you the advice that your situation deserves, after carefully considering the issues that are legally significant in your situation.