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Tallahassee Criminal Attorney > Blog > Criminal > How Modern Patent Law Can Impact Your Criminal Case

How Modern Patent Law Can Impact Your Criminal Case


All the fingerprint matching technology, DNA technology, breathalyzer tests, and more are provided by private companies that produce proprietary software for the criminal justice system. Defendants occasionally want to question how the software works and how the matching occurred. Such defendants are rebuffed from the effort based on the protection of trade secrets. This relates to recent Supreme Court decisions concerning the right to patent algorithms. Today, you can be convicted by a piece of software without ever understanding how it works and with no recourse to look at the code to determine if the software produces exact matches or approximate matches.

Alice Corp v. CLS Bank 

The relevant case applying to this issue comes down to a patent defense case that went the way of the defendant. The Supreme Court ruled that “abstract” concepts such as algorithms cannot be patented. Beforehand, companies could exert temporary monopolies on innovative approaches. Afterward, if the company wanted to protect its intellectual property, it had to use trade secrets and literally keep the algorithm a secret from the public. This means that criminal defendants who demand to examine the software of a specific technology can be prevented from accessing that information based on IP protection rights of the corporations that make devices such as breathalyzers, DNA matching, fingerprint matching, and more.

The U.S. Constitution, on the other hand, requires that all criminal defendants be afforded the opportunity to present a complete defense. Analyzing the software used to match fingerprints and DNA seems like a basic request for any criminal defendant. However, the companies can move to block the disclosure of that information based on trade secrets and proprietary discretion. This leaves defendants with no real means of addressing the complaint against them.

Further, claims of inaccuracy, bias, and other matters have yet to be settled as companies look to protect their software from the public. Yet the concerns of criminal defendants facing prison time based on this technology remain valid and cannot be addressed until the software is thoroughly tested by an independent third-party and every line of code is analyzed for its potential problems.

Convicted on the basis of a secret algorithm 

Since algorithms are not patentable, a company could lose its right to make money on an algorithm if the algorithm becomes public knowledge.  This is especially so if the algorithm becomes public knowledge relatively quickly. The company has a right to protect its trade secret and at present, this is the only means of protection a company has. Patents, on the other hand, allow a company to enforce a temporary monopoly over the algorithm for a set period of time. The company doesn’t fear disclosing the algorithm because their primary rights are protected and another company using the algorithm would have to pay for its use.

If you have been convicted on the basis of a secret algorithm, you may be able to appeal the decision. There is broadscale confusion under the law right now and criminal defendants are being convicted on the basis of intentionally obscured evidence. Call Tallahassee criminal lawyer Luke Newman, P.A. today to discuss the matter in greater detail.

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