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Avoiding Abstraction in Software Patents

February 08, 2012 | Comments: 0 | Views: 134

Software inventions are patentable subject matter in the United States. The Supreme Court in its Bilski decision clearly listed software innovations among the important technologies that must be able to receive patent protection. However, the Court of Appeals for the Federal Circuit, the appeals court for patent cases, has also indicated that to be patentable, a software invention must be more than merely an abstract idea. Software patent applications should be drafted to assure that the invention is presented and claimed as a practical application of the inventive idea.

Panels of the Federal Circuit have held that several patents for software inventions that were drafted in traditional claiming styles were not directed to patentable subject matter because they were abstract and preempted all innovation in a broad area. These styles included the popular Beauregard claim style and a computer aided method style. Other panels of the Federal Circuit, and the USPTO, have found that the same claiming styles protected patentable subject matter because they were more than abstract ideas. So how does one claim a software invention to be sure that it is not too abstract to be patentable?

The Federal Circuit's decision in Dealertrack v. Huber provides some important clues about the differences between an overly abstract software invention and a patentable practical application. The patent in question in Dealertrack, 7,181,427, claimed a "computer aided method of managing a credit application." However, while the steps of the method could have been performed by a computer, there was no explicit description of a computer performing any of those steps. A person could just as easily have performed each step. Yet such mental processes are unpatentable. Therefore it would be prudent in all software claims to include at least one instance of a computer, processor, or electronic device performing a process step.

An early Supreme Court software patent ruling, Gottschalk v. Benson, provides another useful guideline for assuring that software invention claims are not too abstract. The Court opined that a process claim covered all known and unknown uses of an abstract algorithm, effectively protecting the algorithm rather than a practical implementation of the algorithm. Therefore to avoid software invention claims that are unpatentably too abstract, claims should be limited to a reduced set physical implementations. These implementations can of course cover all of the useful options, as long as they don't cover all options. Otherwise, there is a danger that patent claims will be invalidated for protecting an algorithm.

Describing, however broadly, the hardware functions that implement the algorithm is an excellent way to assure that claims are not unpatentably broad or abstract. Hardware limitations narrow claims from protecting unpatentable algorithms, and make it clear that the invention is more than a series of mental steps, keeping patents for software inventions firmly within the boundaries of allowable subject matter.

Scott Thorpe is a Registered Patent Attorney at the law firm of Kunzler Law Group. Learn more about Cybersource, Dealertrack, and other software patent decisions at his website.

Source: EzineArticles
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