Protection of algorithms

An algorithm is a finite sequence of operations for solving a problem or obtaining a result from input data. As such, it belongs to the realm of ideas and mathematical methods, which neither copyright nor patent law protects: Article 52 of the European Patent Convention and Article L. 611-10 of the French Intellectual Property Code exclude mathematical methods and computer programs as such, and copyright protects only the form in which a program is expressed, not the ideas and principles underlying it. Protection is therefore obtained indirectly, through a patent where a technical effect is produced, through copyright in the code, through trade secrets and through contract.

Exclusion of the algorithm as such

The principle that ideas are free to all applies fully to algorithms. Copyright protects the code that implements an algorithm, not the method of calculation, so that a third party may rewrite a program performing the same operations without infringing. Software protection is thus protection of form. In patent law, an algorithm falls within the scope of patentability only through a computer-implemented invention, where its application produces a technical effect going beyond the normal physical interactions between a program and a machine.

Trade secrets as the main protection

In practice, algorithms are most often protected as trade secrets, governed by Articles L. 151-1 et seq. of the Commercial Code. Protection requires that the information is not generally known or readily accessible, that it has commercial value because it is secret and that it is subject to reasonable protective measures. This route is fragile for distributed programs, which are exposed to reverse engineering, permitted by law where it is carried out on a lawfully obtained product, subject to the specific limits on the decompilation of software.

Transparency obligations and their limits

The protection of algorithms meets growing transparency obligations. Article L. 311-3-1 of the Code of Relations between the Public and the Administration requires that persons subject to an individual decision taken on the basis of algorithmic processing be informed of it and that, on request, the rules and main characteristics of that processing be disclosed to them. These obligations are designed not to require the disclosure of source code or trade secrets, and they come with duties of confidentiality on the part of the authorities.

Key points

An algorithm as such is protected neither by copyright nor by patent. Its protection relies on copyright in the code, on a patent where its application produces a technical effect and, above all, on trade secret law, which requires documented protective measures. Each component of a system should be mapped so that the appropriate regime can be assigned to it, and requests for transparency that may come from the authorities or from users should be anticipated.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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