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Using Negative Limitations to Broaden Software Patent Claims

February 02, 2012 | Comments: 0 | Views: 134

Software patents are often limited in the breadth of their claims because of slightly similar technologies directed to different applications that nevertheless include similar inventive elements. For example, an invention that employed encryption may be rejected during patent examination because of a previous invention or prior art reference that used a public/private key encryption. One may have no choice except to sharply reduce the scope of the claims, such as by claiming a hash of a biometric parameter used for the encryption, in order to distinguish the invention from the prior art reference.

However, in many cases, a much greater breadth of claim coverage can be maintained if one is able to include a limitation that specifies the claim does not cover the specific circumstances of the prior art reference. Using a narrow negative limitation may remove a prior art reference by not claiming the invention for a specific set of conditions that include the prior art reference, while allowing broad protection for all other conditions.

In the example of the invention that used an encryption, the prior art reference could be removed by claiming an encryption other than a public/private key. This is much broader than claiming only a hash of a biometric parameter, but still distinguishes the invention from the cited art.

However, in order to be employed during prosecution, negative limitations must be anticipated and included in the patent application. Otherwise one can only add the negative limitation as part of a continuation-in-part, or poorly supported amendment that may not withstand scrutiny during litigation.

In order to include potentially useful negative limitations in the application, one must consider what kinds of technologies or applications could have similar functions or attributes to one's invention. These could then be optionally excluded from the invention. For example, if one is patenting a novel packet transmission innovation, one could optionally exclude the application of the technology from multiline buses, mass storage devices, and processors.

With the use of the invention excluded from these dissimilar technologies or applications in the application, one then has the option of eliminating prior art references directed to these technologies or applications during examination with a negative limitation. For example, one could limit the invention to networks other than multiline buses. As a result, the scope of the claimed invention need only be narrowed for a specific condition, and not for most conditions.

During the preparation of the patent application, negative limitations should only be included in the specification unless one knows of prior art references that the invention must be distinguished from. Negative limitations are more effectively employed after one knows what prior art references will be employed by the examiner. By using negative limitations, the scope of software patent claims can be judiciously narrowed, preserving a broader scope of protection.

Scott Thorpe is a Registered Patent Attorney at the law firm of Kunzler Law Group. Learn more about negative limitations at his website.

Source: EzineArticles
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