The patentability of a software invention can depend on the proper construction of a detailed patent description. The early claims for software patents often claimed the “means for performing” a particular function. For example, a claim for software claiming an algorithm to add two numbers may state, “means for receiving input values.” The proper construction of the “means for receiving input values” involves the use of a material, structure, or act. It may also be a specific algorithm.
\nIn the context of Section 112, a lack of written description is a significant factor in denying a patent application. For example, if you claim that your invention provides a new method of detecting fraud or avoiding financial transactions, you must provide a detailed description of your claims. The specification, which is the first paragraph of the patent application, must clearly describe what your claimed invention is and how it solves a problem. It is important to note that the written description must include each and every authorization code.
\nGenerally, failure to provide a detailed patent description occurs when the claim language changes after filing. Those changes can either narrow or broaden the claim scope. They may also change the numerical range limitation or introduce terminology that was not included in the original disclosure. For instance, if the claim language changes in the final filing, the written description requirement does not apply to the new claim.
\nThe Supreme Court has rejected the Morse telegraph case as a legitimate precedent for the scope of Section 112(f)’s functional claiming. The case concerned a telegraph and was much more complicated than a characterization of a process. It also did not involve a functional claim under SS 112(f), at least not in its present form. However, the case obscures the focus of the current legal and policy discussion.
\nThere are several arguments for and against the proposed amendment to SS 112(f). The most common argument against removing the limitation is that it would make it nearly impossible for patentees to protect the full scope of their inventions. In other words, removing the limitation would require patent claim drafters to omit concepts that were previously included in the specification. These arguments fail. The proposed amendment is an important step towards ensuring that patentees do not monopolize generic computer and business methods.
\nIn a patent application, the claims may cite a functional step that the invention performs. However, these claims will not be definite under Section 112(b). In addition, the claim must disclose the method of performing the function, usually through a logical flow diagram. However, a claim that recites a method or a process that can be implemented by a computer will not qualify as a definite claim under Section 112(b).
\nThe Tillis-Coons draft bill also includes a proposed amendment to SS 112(f). The new language clarifies the existing law regarding the scope of functional claims. The new language in SS 112(f) addresses a concern regarding overbroad claims that may lead to preemption. The Williamson v. Citrix decision overruled a strong presumption that a claim must include a “means” in order to be considered a valid patent.
\nIf an applicant disagrees with the claim structure, the USPTO will review the claims for sufficiency under Section 112(f). The claim structure must satisfy the Federal Circuit’s holding in this case. Moreover, it must be clear that the claimed method or function does not resemble prior art. However, this case will still be decided on whether or not the claimed method is patentable.
\nThe Williamson decision will likely have the largest impact on software patents. As a result, patent practitioners will need to carefully consider the decision when drafting claims and developing litigation strategies. The Williamson decision will also change the landscape for computer software claims. In many instances, claims describe the arrangements of various modules, mechanisms, elements, and devices. Patent attorneys often use “functional language” to describe these arrangements, but the Williamson decision overturned this presumption.
\nThe Federal Circuit’s decision in Williamson v. Citrix has changed the way that functional claims are interpreted. In the past, patent applicants were able to make a clear indication of their intent to provide a particular result or function, which would lead to a finding of novelty. However, a means-plus-function claim has changed this. While the Court’s reasoning in Williamson is still ambiguous, this case will likely have a profound effect on software patents.
\nIn addition to impacting software patents, Williamson provides important lessons for patent claim drafting and litigation. Claims written with careful drafting can avoid the Williamson impact. Furthermore, the decision’s impact on Section 112(6) is one that litigators should be aware of. As a result, patent litigators should be aware of Williamson’s impact on Section 112(6). In particular, it shows the potential for unintended application.
\nThe Federal Circuit affirmed the trial judge’s invalidation of eight claims in the Williamson case. The Federal Circuit construed the claims as means-plus-function, and found that eight of the nine challenged claims failed to recite essential structures, materials, or acts. However, the Federal Circuit emphasized that form must not be elevated over substance. If a means-plus-function claim fails, it is likely to be invalid.
\nPatentees are free to include nonobviousness analysis as part of their claims in the specification of a product. Nonobviousness analysis can help patent owners narrow the scope of their claims by identifying the invention that would be obvious in the absence of the patent. However, it should be noted that a patentee’s claim may still be valid without such analysis. In such a case, estoppel may apply.
\n\n https://www.ycombinator.com/documents/
\n https://techcrunch.com/
\n https://www.uspto.gov/learning-and-resources/startup-resources
\n https://www.sba.gov/business-guide/plan-your-business/fund-your-business
\n https://hbr.org/1998/11/how-venture-capital-works
\n http://patentpc.com/
\n http://uspto.gov/
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