united-states software patents jurisdiction subpoena
Is code on Github safe against US claims?
<p>I run a smaller non-US company producing hardware-related code. Since the code is hardware related I might patent it (the entire system) outside US at some time.</p>
<p>I want to use Github to store my code because I believe it's better protected against hacking there as opposed to self-host the repository (ransomware).</p>
<p>Could a counterparty file a case to a US court and ask the source code of my invention because the hosting company (Microsoft) is US-based? If that would happen, would I get informed?</p>
<p>I ask this because defending in US would be much more expensive considered the high salary level there and the translation costs and eventually travel costs.</p>
<p>The company is not planning to be active in the US.</p>

<p>There are a tangle of issues going on in this question.</p>
<p>First, distribution of hardware-related code in commerce might very well void any right you have to patent the software and might bring it into the public domain for purposes of patent law. Publicly disclosed inventions, even if protected by copyright, are part of the &quot;prior art&quot; and can't be protected by patents.</p>
<p>Second, you have to disclose the material ideas in an invention in order to patent it, in your patent application. The bargain of a patent is that you get protection for about two decades in exchange for contributing your idea to the public domain when it expires.</p>
<p>Third, usually people protect software with copyright rather than patent, although there are pros and cons to each approach.</p>
<p>Fourth, if someone knows enough about your invention to subpoena the place where you store it, you have probably disclosed too much information pre-application to patent it.</p>
<p>Fifth, usually the &quot;real&quot; target of a subpoena gets notice of it and an opportunity to defend against the subpoena (e.g. for improperly disclosing a trade secret) before it is carried out, but the same does not apply, for example, to National Security Letters under the Patriot Act (which are supposed to be used only in national security investigations or counter-terrrorism operations, but might be abused). Certainly, an ordinary person can't issue a National Security Letter for private commercial gain without corrupt government assistance.</p>
<p>Sixth, to issue a subpoena, there must be some pending case to which someone can claim the subpoena is relevant. A random person can't just subpoena information because they want to.</p>
<p>Seventh, even if a server host isn't based in the United States, that doesn't mean that there isn't some means by which a court might assert subpoena power over information on server host. There are many legal &quot;hooks&quot; that could apply.</p>
<p>Eighth, defending an isolated subpoena isn't terribly expensive. Typically, you'd be looking at a legal fee in the $1000 to $5,000 (U.S.) range, which is much, much less than the dollar cost of patenting an invention in any country.</p>
<p>In short, while there are pros and cons of using a U.S. based server host, people in the IT industry routinely attach far too much importance to this fact which is only very rarely an important one legally. There are many other issues which are much more important in this fact pattern to your ultimate goal.</p>
