Functional Claiming in Software Patents
Software patents are generally directed to a sequence of steps or rules, i.e., an algorithm, performed by a computer programmed to carry out the algorithm. Because algorithms are inherently functional in nature, software patent claims are frequently written using functional, as opposed to structural, terms. In many cases, software claims recite vague sounding “units” or “modules” to carry out steps of the algorithm.
Consequently, software claims are often subject to the means-plus-function guidelines set forth in 35 U.S.C. §112(f), which require that the specification describes structure to perform the claimed function. Although a computer-implemented algorithm is necessarily executed using structural parts—e.g., a microprocessor, a memory, etc.—a description of such parts in the specification, on its own, may not suffice as the structure needed to satisfy 35 U.S.C. §112(f) and protect the claims from indefiniteness. Continue Reading With Software Patents and Means-Plus-Function, “Structure” Takes On a New Meaning