No uniform or customary method of disclosure for software patents is currently employed by inventors. This Note examines the issues that develop from software patent claims disclosed at various levels of abstraction, and the difficulties encountered by courts and the public when investigating the contours of the software patent space. While the courts have placed some restrictions on the manner in which software inventions are claimed, they are easily bypassed by clever patent applicants who desire to claim the maximum scope of their inventions. In the long run, however, a large “patent thicket” of overlapping and potentially overbroad inventions will work against the interests of inventors who desire to enforce their temporary technological monopolies. A confused field of inventions, when combined with a variety of abstracted disclosures, will result in unpredictable litigation and potentially invalidation of software as a patentable subject completely. Software patentees, like all patent holders, benefit greatly from robust and fair patent protection. In order to achieve the goal of a patent system that effectively balances the rights of the inventor with the right of the public in the interest of progress, however, this Note argues that patentees must recognize their critical role in the patent system and disclose the invention in code or pseudo-code at a level of abstraction that will allow the software community to effectively recreate the invention.
Holly K. Victorson,
Structure from Nothing and Claims for Free: Using a Whole-System View of the Patent System to Improve Notice and Predictability for Software Patents,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol20/iss2/6