[Cryptography] A strategy to circumvent patents?

Jerry Leichter leichter at lrw.com
Tue Sep 3 16:20:17 EDT 2013

On Sep 3, 2013, at 12:45 PM, Faré <fahree at gmail.com> wrote:

> Don't write the code. Write a reasonably general software solver that
> finds a program that fulfill given specifications, given a minimum
> number of hints. Then write a specification for the problem (e.g.
> finding a nice elliptic curve with interesting properties) and let the
> solver find them.
> You didn't explicitly write the solution. Now, the patent troll has to
> argue that the problem itself, not the solution, is covered by the
> patent — which I believe is not supported by patent law. Or he has to
> argue that the solution isn't obvious to someone versed in the arts,
> which it is, since a trivial automated program could find the
> solution.
Sigh.  Beware hackers practicing law.

A patent gives someone the right to exclude anyone else from making, using, or selling the patented invention.  You can certainly write a program such as you describe, since it is itself presumably not covered by the patent.  And most likely, even if it stumbled upon exactly the same elliptic curve as is covered by a patent, running the program would not be seen as "making" the invention. The inventions that are out there seem to be of two classes:  Covering doing crypto over some particular curves; and various particular implementation techniques.  Now that your program has found the magic curve - which, of course, you could much more easily have "found" by reading the patent, at least in principle - you can neither use nor sell products that do crypto over that magic curve, nor apply the particular techniques, without permission from the patent holder.

Given the state of patent law and how "obviousness" is currently interpreted, in practice, it's almost impossible to invalidate a patent on those grounds.  (The patent holder would argue that, were it not for the existing patent, you would never have come up with just the right inputs to feed into your program to have it come up with the patented technique.  And, frankly, he'd be right.)  Recent Supreme Court rulings may have brought some life back into "obviousness", but it'll be a while before we know for sure.

Don't try to play games with patent law; you can get hurt.  A court, after likely invalidating your attempted hack-around, would then turn around and see it as evidence that your infringement was willful, perhaps even a deliberate attempt at patent fraud, and hit you up for additional damages.

The situation sucks, but we're stuck with it.

A few weeks ago, I would have said "go ahead and do what PGP did, ignore the patent and distribute an open source version that will give the patent holder - who up until now hasn't been at all aggressive, with only one reported law suit - try to figure out how to get a handle on all the copies".  But the situation has changed with the financial problems of BlackBerry, which now owns the patents.  Those patents will go to *someone*, and if they end up with a patent troll, whose whole business model is based on finding people to go after, often in ways deliberately designed to make defending oneself economically infeasible.  They'll know how to make money off of your attempt at improving the world.  :-( We're just going to have to wait and see who ends up with those patents....

                                                        -- Jerry

> —♯ƒ • François-René ÐVB Rideau •Reflection&Cybernethics• http://fare.tunes.org
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