The determination as to whether or not two algorithms in a computer programme are similar enough to be considered ‘the same’ algorithm can be crucial in patent prosecution and other legal disputes, from theft of trade secrets to patent infringement. Establishment of prior art by the responsible court involves consideration of the contemporary practices of software engineers and computer scientists who develop and implement algorithms. This paper, co-authored by two computer scientists and two legal professionals, reviews those arguments that can be used to assess the similarity of algorithms, in relation to the criteria of novelty for a grant of patent.
