Means Plus Function Claiming

by Dennis Crouch

 

PatentlyO201

The chart above shows the percentage of published non-provisional patent applications that include the term "means for" at least once in the claimset. Although not the only way of doing so, "means for" is traditionally used by patent attorneys to invoke the doctrine known as means-plus-function claiming allowed under 35 U.S.C. 112p6. [Soon to be renumbered 35 U.S.C. 112(f)].  As the chart shows, the percentage of applications that include at least one means-plus-function term is well under 10% and seemingly in continued decline. A decade ago, about 1/4 of all applications included this type of claim. 

Section 112(f) states: 

(f) Element in Claim for a Combination.— An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Under the statute, a term claimed in means-plus-function format will be construed to cover the corresponding structure that is described in the specification and equivalents thereof.  Thus, for a claim recites a "means for fastening," the first step in understanding the scope of that claim is to look in the patent specification to see whether any structural component has been described.  If so, then the means-plus-function term will be construed to cover that structure and its equivalents.  Thus, in our fastenting example, if the specification discusses glue as a way to fasten two objects to gether, then the "means for fastening" will be interpreted as covering glue and its equivalents.  One reason why means-plus-function claims have fallen out of favor is that this actual scope given to the means claim is quite narrow, while a different term such as "a fastener" might be given a broader scope.  If there is no corresponding structure given in the specification, then the means-plus-function term will be considered indefinite and the associated claim invalid or unpatentable.  

The idea behind means-plus-function claims is that it is often much easier and more straightforward to claim a means for doing something rather than listing (in a claim) all the possible ways of accomplishing the task.  The strong limitations on the claim scope stemming from an MPF term stems from Supreme Court cases such as O'Reilly v. Morse, 56 U.S. 62 (1853). In that case, Morse (inventor of the telegraph) attempted to claim any use of electromagnetism for sending signals over a distance. Morse made clear in his claim that he intended to not be limited "to the specific machinery or parts of machinery described in the foregoing specification and claims."  In deciding the case, the Supreme Court held that to be patentable, the legal claim must be more directly tied to the practical application and implementation of the idea. The restrictions on the interpretation of means-plus-function terms help ensure that those claims are tied to particular structures and thus will not run afoul of Morse or other similar doctrines. 

Because of these restrictions on means-plus-function terms, Professor Mark Lemley has suggested that courts begin to interpret software claim terms as being written in means-plus-function format.  [Link].  In all likelihood this would severely limit the scope of many software related patents and would also lead many of them to be invalidated under MPF-indefiniteness. 

55 thoughts on “Means Plus Function Claiming

  1. You are welcome Dennis. And what a clever way, quickly to explore the point, simply by comparing US with FR, for Asia, GB, DE would be, in my estimation, somewhere between US and FR.

    My hunch is that use of M+F by US applicants is steadily falling while, for FR applicants, it is holding up stronger.

  2. Lying is not permitted on Patently-O.

    Absolutely agree.

    Are you insinuating that I have lied? I have not. MaxDrei post timestamps are clearly available and clearly span far more hours of the clock than my own.

    Open your eyes son. Get over the moniker name, pick up those arrows at your feet and move on.

  3. Max – Thank you for this comment. You are correct that patents originating from certain countries (e.g., France) tend to have a higher rate of using MPF claim language. The US-applicant-only rate of using MPF claim language is about 2/3 the rate of what I reported above for all applicants.

  4. Do you recognize that no matter where MaxDrei’s house actually is, the time stamps of his post circle the clock at ALL hours – even more so than my posts, for which your circle mate initiated the dig (which bites him in his own @_$$ even harder).

    Lying is not permitted on Patently-O.

  5. LOL – have you no time to think of anything more banal than your mischaractization of my mental state?

    Perhaps my time zone is identical to MaxDrei’s – or are you indulging in assumptions (as perhaps MaxDrei did in his post)?

    Perhaps you should try harder to see the hypocrisy before you take up arms and post. Do you even understand what the glass house is a reference to? Do you recognize that no matter where MaxDrei’s house actually is, the time stamps of his post circle the clock at ALL hours – even more so than my posts, for which your circle mate initiated the dig (which bites him in his own @_$$ even harder).

    Alas, the irony is lost on those unwilling to open their eyes.

  6. Uh, yes, that’s kind of the point. You seem to be concerned that Max is posting at 8:30 and 10 AM, local time. What, pray tell, is hypocritical about that?

    You are a sad, lonely person, aren’t you?

  7. And you are aware that where his house is located has nothing to do with the blog post timestamps, right?

    Phffft.

  8. 2:32 AM and then again at 4:AM ??

    At least we know what time the doors to the Hypocrite’s glass house are opened.

  9. Please forgive, if this point is covered above but I have missed it.

    I gather that about 50% of all USPTO filing is by aliens. The US law firms which prepare the filing papers presumably use the claims provided to them from outside the USA where M+F delivers the widest achievable scope. In my experience, at least Europe habitually favours M+F claiming.

    Could this explain the persistence of M+F claims at the USPTO, even 15 years after the CAFC cut back their effective scope so drastically? Can Prof Crouch sort the data according to whether the applicant is from within or without North America?

  10. You include business entities in the category of income earners?

    Ah, right. Corporations are people except when they aren’t. So what’s your point, IBP? That the middle class and lower classes have suddenly begun creating corporations to file patent applications and that’s what’s responsible for the surge in filing the over the past few years? Or maybe it’s unemployed Greeks?

  11. Yet a great many patents written in the last 15 years or so DO “only” have means-function claims.

    What is the basis for this statement? (serious question, as you may have some actual data)

    Me? I don’t have data, but just estimating and given the incredible shrinking proportion of having at least one, I would think that ONLY having claims of that sort would be about 1% of that shrinking population. To me, and this might be a bit crazy, but 0.06% is not a “great many” comparatively. Such certainly doesn’t support the hyperbole of your posts, and even at the minor level of use certainly does not mean that the form has zero value and would necessitate some form of education to eradicate.

  12. Glad you noticed the “only”, because, as noted above there are sometimes good reasons to add means-function claims alternativly. But I was not even refering to the chart above, which only starts at 1/01. Nor did I indicated there was just a single Fed. Cir. decision that was being ignored* Yet a great many patents written in the last 15 years or so DO “only” have means-function claims.

    *The Federal Circuit has held several times for a long time now that the same or identical “function” must be provided in the accused product for literal infringement of a “means-function” claim element. That is, there is no normal doctrine of equivalents (DOE) for the “means for” function.
    Also, that any structural “equivalents” under 35 USC 112 para. 6 will always be different and always be narrower than DOE for other types of claims. E.g., since at least Kemo Sales Inc. v. Control Sales Co., (Fed. Cir. 2000), and Odetics, Inc. v. Storage Tech. Corp. 51 USPQ2d 1225, 1230 (Fed. Cir. 1999).
    The CAFC has also held several times that structural “equivalents” of a means-function claim element means equivalents of the “corresponding structure”..”described in the specification”. E.g., since at least Johnson v. IVAC Corp., 12 USPQ2d 1382 (Fed. Cir. 1989) [also reminding that a means-function claim does NOT cover ALL means for accomplishing the stated function]; and In re Iwahashi, 12 USPQ2d 1908 (Fed. Cir. 1989). Valmont v. Reinke, 25 USPQ2d 1451 (Fed. Cir. 1993) even suggests that the word “equivalent” in Section 112(6) invokes the familiar concept of an insubstantial change that adds nothing of significance to the structure, material or acts disclosed in the specification.

  13. So because only the top 1% of income earners can get a partner from a top 5 prosecution mill on retainer (a ridiculous assumption all on its own), the top 1% of income earners are responsible for the “exploding” application filing and patent grant rates?

    No. Nice strawman, though.

    It’s more like an Occam’s razor thing. Patent applications are pretty expensive to obtain. We entered a pretty devastating recession in 2008. We’re still in that recession and unless something dramatic happens we’ll be in that recession for a while. Over that same period, a few things have happened: (1) the rich have gotten richer and are looking for new investment opportunities now that house flipping isn’t as fun, (2) the middle class has shrunk, and (3) patent filings have dramatically risen to historic levels with no signs of abatement. So, given those facts, what is the most likely source of the surge in patent filings? I think it’s rich people playing at the patent casino.

    What’s your theory again? If I understand you correctly, your theory is something along the lines of: an invisible flying elf took a whiz in every drinking reservoir in the country and the shrinking middle class who drank it suddenly found itself wanting to spend money they don’t have on patent applications to protect new “technologies” whose purpose is to convince them to spend money on stuff they can’t afford.

  14. MM–

    You include business entities in the category of income earners?

    You seem to be unraveling. Everything you post proves my point, yet you seem to believe otherwise.

    Get a grip, Mooney. You’re not doing yourself any favors.

  15. “How about this: identify the top five patent filing law firms then call up one of the partners there and tell them that you have an awesome new method for targetting customers with music and/or video download recommendations over the Internet (you can’t divulge the details of course). Tell them that you have five thousand dollars to spend, that you earn $45,000/yr, and you’ve never filed an application before but you have searched the database and you are certain that your method is new. Ask the partner if he can take you as a client without a retainer or if he has some other recommendation.”

    So that’s your evidence? Man, that’s some seriously weak arse stuff. Aren’t you supposed to be a lawyer.

    So because only the top 1% of income earners can get a partner from a top 5 prosecution mill on retainer (a ridiculous assumption all on its own), the top 1% of income earners are responsible for the “exploding” application filing and patent grant rates?

    “Then we talk about proving that unicorns don’t exist or whatever other similar studies you have in mind.”

    So IBP has to provide “studies” to back up his assertions, but you get to “prove” yours with your usual blatherings?

    You do continue to amuse.

  16. Ned: MPF, claiming old elements functionally, as recognized by Lemley and just about everyone else, is where functional claiming should be permitted and be given broad scope. If the invention lies not in the old element being claimed functionally, the range of equivalents should be broad.

    No doubt. The only comprehensible objection we’ve heard to this is the dead-on-arrival Diehrbot objection, where some poorly written dicta was alleged to preclude any analysis of limitations based on the prior art status of those limitations. That objection was given a fitting burial by the court in Prometheus. Nine nails in the coffin. It would be nice if we could move on but we know that’s not possible in a world inhabited by zombies who are likely arguing in other forums that Saddam Hussein was behind 9/11.

    We need to repeal 112(f). Absent that we need the following judicially:

    1) The functionally expressed claim element needs to be analyzed for novelty.

    In many (most?) of the information-processing “inventions” where this issue arises, the only reason that old elements are recited is that they are believed necessary to satisfy the requirements of some other statute, particularly 102, 103 or 101. With respect to the first two statutes, it seems that in my instances patentability can be conferred upon an otherwise old processing step (or “algorithm”) merely be changing the name given to the information being processed (“it’s not data about what program is being watched, it’s data about what program is not being watched!”; “the prior art only discussed collecting information about humans, not their pets!”) or about the device in which the processing occurs (“the prior art doesn’t discuss hand-held devices with touch-screen interfaces”) or about the source or destination of information to be processed and/or processed (“the prior art doesn’t discuss obtaining this data from mobile phones”; “the prior art does not disclose providing this information to security-protected users only”). It should go without saying that none of that sort of hoo-haw should matter for patentability but our PTO has lowered its examination standards dramatically in a misguided effort to please its “customers”.

    2) If the claim element is at the point of novelty, either the claim should be declared indefinite, overruling Donaldson, or the range of equivalents should be narrow.

    In the context of examining flowchart/information-processing inventions, 112(f) is a joke. There are no “corresponding structures” to recite because there are no structures provided for the allegedly “inventive” contribution in the first instance. What’s an “equivalent” to a novel algorithm?

    In many (most?) instances, the alleged “invention” in the typical computer flowchart patent has never been reduced to practice and no working embodiments (e.g., code) is disclosed. A mechanical equivalent would be “A motorized vehicle operated in part by a pedal, wherein if the pedal is depressed between 43% and 84% maximum depression for a time period between 5.32 and 20.12 seconds in length, the vehicle travels at a rate between 30.4 and 73.3 miles per hour.” The disclosure is little more than boilerplate talking about old cars. Maybe a couple articles from Car Weekly are submitted as prior art. The applicant would insist (correctly) that one skilled in the art could make a vehicle with the recited functionality because its well known how to adjust the necessary parameters once you know the result desired. And the USPTO would get out its rubber stamp because “cars are really important to the economy.”

  17. MM: “”They’ve been relentlessly criticized here and elsewhere since the beginning of patent blogs so there’s no excuse for not understanding their shortcomings.”

    You have a problem with this quote, IBP?”

    Not all. I couldn’t have said it better myself!

  18. We really need to consider repealing 112(f).

    MPF, claiming old elements functionally, as recognized by Lemley and just about everyone else, is where functional claiming should be permitted and be given broad scope. If the invention lies not in the old element being claimed functionally, the range of equivalents should be broad.

    The vice of functional claiming exists at the point of novelty, where the invention itself is claimed in terms of its ultimate result. Such a claim covers any means or method that achieves the same result. This runs afoul of O’Reilly v. Morse and cases following it through and including Halliburton.

    Some think Halliburton banned means plus function claiming. It did not. It banned them only at the point of novelty. This was made clear in Faulkner v. Gibbs decided just a few years later.

    112(f) could be construed as an attempt to authorize functionals claiming at the PON. To that extent, the effort was and is extremely wrongheaded. If a claim is not limited in some fashion to the novel structure, materials or acts, it should be declared indefinite, exactly as held by a whole series of Supreme Court cases on topic.

    But the true vice of 112(f) is that it prevents efficient claiming of old structure, material or acts. When we seek in a claim to describe well known structures, etc., we should be able to use generic terms, functional expressions and the like and receive full scope. 112(f) distorts this effort — big time.

    We need to repeal 112(f). Absent that we need the following judicially:

    1) The functionally expressed claim element needs to be analyzed for novelty. If the claim element is claiming something known, its equivalents should be given broad scope.

    2) If the claim element is at the point of novelty, either the claim should be declared indefinite, overruling Donaldson, or the range of equivalents should be narrow.

  19. Soon, I predict, FedCir will hold that claim elements like ‘a device [or mechanism, apparatus, system, structure] CONFIGURED TO … ‘ will be determined to be means plus function.

  20. I’m interested in knowing MM, how you are so intimately aware of the internal workings of a great many law firms.

    Because I’ve been in the business a long time and it’s not that large of a community.

    a middle-class employee may well work for a large employer who is willing, and able, to prosecute an application.

    Thank you. Care to make any other admissions that prove my point?

    Why don’t you do a study of sole inventor applications to put some strength behind your suggestion?

    How about this: identify the top five patent filing law firms then call up one of the partners there and tell them that you have an awesome new method for targetting customers with music and/or video download recommendations over the Internet (you can’t divulge the details of course). Tell them that you have five thousand dollars to spend, that you earn $45,000/yr, and you’ve never filed an application before but you have searched the database and you are certain that your method is new. Ask the partner if he can take you as a client without a retainer or if he has some other recommendation.

    Let me know how that goes. Then we talk about proving that unicorns don’t exist or whatever other similar studies you have in mind.

  21. ” They’ve been relentlessly criticized here and elsewhere since the beginning of patent blogs so there’s no excuse for not understanding their shortcomings.”

    You have a problem with this quote, IBP?

    I can see how the concept that blogs could have an effect on practitioner behavior (or policy, or the law) might have seemed a daring proposition ten years ago. Back then I can remember regularly answering some of my fossilized colleagues firmwide emails by typing their question into a magical thing called a “search engine” which was already quite old. That went on for years. The idea of getting information from the Intertubes was simply too much to process, especially when that “mouse thing” was so darn counter-intuitive.

    But now or anytime in the past several years? Seriously, IBP? I can’t remember the last time I picked up a copy of “IP Today” or some such “industry” rag. Why would I bother, unless someone left a copy in the restroom or I’m in some alpine reception area without access to the web?

  22. MM: “The patent firms who file the majority of US patent applications don’t even want to look at your technology unless you’ve got thousands of dollars for a retainer and even then, unless they see an imminent desire to spend hundreds of thousands of dollars more, they are very reluctant to risk being conflicted out of working for a bigger client.”

    I know for a fact this does happen at some firms, but I wouldn’t myself go so far as to say that it happens at those US firms that file the majority of US app’s.

    I’m interested in knowing MM, how you are so intimately aware of the internal workings of a great many law firms. I know generalizations can be helpful, but some evidence–any–would be appreciated.

    Like a breakdown of firms and how many apps they file as a percentage of the whole, and then maybe narrowing the scope of your statement.

    And in any case it’s apples and oranges–a middle-class employee may well work for a large employer who is willing, and able, to prosecute an application.

    Why don’t you do a study of sole inventor applications to put some strength behind your suggestion?

  23. The top 1% of income earners are responsible for these “exploding” application filing and grant rates? I’d be fascinated to see the evidence you have in support of that conclusion.

    I’d be fascinated to learn why you doubt that. Is the filing of patent applications a new middle class trend that the New York Times hasn’t yet reported on? Or are you taking issue with the precision of the number I quoted? Am I off by a few percentage points?

    The patent firms who file the majority of US patent applications don’t even want to look at your technology unless you’ve got thousands of dollars for a retainer and even then, unless they see an imminent desire to spend hundreds of thousands of dollars more, they are very reluctant to risk being conflicted out of working for a bigger client.

    The idea that the dramatic increase in application filing since, say, 2008 (when the housing market collapsed), is due to a surge in filings by non-wealthy Americans is pretty ridiculous. “The bank foreclosed on our house today. I guess it’s time to start filing some patent applications.” Yeahright.

  24. Paul,

    Will the MCLE include basic reading? : “The chart above shows the percentage of published non-provisional patent applications that include the term “means for” at least once in the claimset.

    The data here does not disclose how many years it took for PTO practitioners to finally stop using only means-function claims since the Fed. Cir. decision that you indicate.

  25. MM–

    By now you know how I feel about claims, especially so-called “software claims”…

    …but your posts are crxp. ” They’ve been relentlessly criticized here and elsewhere since the beginning of patent blogs so there’s no excuse for not understanding their shortcomings.”

    Here’s something that might exacerbate the inadequacies of your formulation–a fun (in this context) quote from the Hungarian physiologist Albert Szent-Gyorgyi, of which many are no doubt aware, but I think it worth making explicit, anyway:

    “Discovery consists of seeing what everybody has seen and thinking what nobody has thought.”

    I especially enjoy his use of closed-ended language in this context.

    Good job on building yourself a soapbox, however.

  26. The fact that it has taken so many years [15+ years] for almost all PTO practitioners to finally stop using only means-function claims since the Fed. Cir. decisons interpreting means-function claims much more narrowly (and then requiring more specifically identifiable 112 support), is a clear demonstration of the need for MCLE for PTO practitioners.

  27. “It’s simply an intellectual property land grab in an adminstrative environment where that land is being given away. To whom? Why, almost always to the folks who need it most, of course: the top 1% income earners.”

    Really? The top 1% of income earners are responsible for these “exploding” application filing and grant rates? I’d be fascinated to see the evidence you have in support of that conclusion.

  28. It seems the trend in not including means plus function is more of a knee jerk reaction. Unfortunately, it fails to recognize the value of including such an independent claim as an additional claim within a claim set.

    Assuming there is value to such claims, it’s possible that practitioners are drafting explicit support for them but leaving the text in the specification (e.g., the summary section) at filing rather than paying extra to recite them in the claims.

  29. From the linked article by Lisa Ouellette:

    As I understand Lemley’s argument, if you were the first person to develop the quicksort algorithm, and you disclosed the details of the algorithm in code or pseudocode, you should be allowed to claim the quicksort algorithm (including in other languages)—but you could not claim “sorting” in general, and your claim would not be infringed by someone using mergesort. If instead your invention is allowing Internet shoppers to sort products by relevance, you may use functional claiming for the “sorting” part of your claim (because algorithms like quicksort and mergesort are well known in the art), but you must disclose your specific algorithm for defining the relevance factor that is being sorted — you may not claim “sorting by relevance” in general.

    Note that claims of the latter sort (in bold) are equivalent to simply granting patent protection for an algorithm. If the USPTO is capable of examining algorithms properly, I’ve yet to see any evidence of it. We know how the software proponents will want it: all novel algorithms will necessarily be non-obvious and the evidence for non-obviousness will be that (1) nobody invented them before or (2) the company we want to sue sold a device that, by chance, uses an infringing algorithm so … commercial success!

    So let’s say someone gets a patent on sorting by relevance for “Internet shoppers” because they’ve “defined the relevance factor that is being sorted.” Absent some other major change in the way such claims are examined, someone else can get a patent on on sorting by relevance for “Internet shoppers, wherein the Internet shopper is accessing the Internet by a mobile device” or “wherein the products being sorted are books on bird identification” or “wherein a different, old algorithm is used on Mondays.” These are the sorts of “inventions” that qualify as patent-worthy at the USPTO today. This is why application filing rates (and grant rates) are exploding. There’s no dramatic increase in “innovation” occurring. It’s simply an intellectual property land grab in an adminstrative environment where that land is being given away. To whom? Why, almost always to the folks who need it most, of course: the top 1% income earners.

    And lastly there is the most baffling question of all: why on earth would patents be expected to promote progress in creating new algorithms for sorting products by “relevance”? If the goal is to find better ways to advertise products so people who don’t really need them will be compelled to buy them, then progress in that “art” should be promoted the way it always has been: by profits from the sale of the advertised products. If those products aren’t selling, the answer isn’t “more patents”. The answer is to fix the economy so people have money to buy things that they don’t really need. Ironically, the most straightforward solution to that problem is the solution fought hardest by the same patent t–b-gg-rs who can’t get enough of these c–ppy patents.

  30. You’d have a much different looking graph if you took into account the current version of MPEP 2181. Almost every software-related application with a claim to an apparatus includes limitations that invoke 112 6th.

  31. It seems the trend in not including means plus function is more of a knee jerk reaction. Unfortunately, it fails to recognize the value of including such an independent claim as an additional claim within a claim set. It also fails to recognize that means plus function is treated completely different in Europe and other foreign countries, and that an initial claim set is often filed not only in the US but in those foreign counties, most often through a PCT filing. In many applications, the strategy of including a single means plus function claim that may simply recite the method claim terms, can protect all that is disclosed in the specification (plus equivalents) under US law and can protect more than that under many foreign country laws. I agree that most examiners do not properly examine or even attempt to properly examine such claims under the MPEP, even when called to the carpet to apply MPEP 2181. In my stone cold crazy opinion, not including a means plus function claim ignores the benefits of this additional claiming option under US and foreign patent law.

  32. MM writes “blah, blah, blah,” which is the same as the “blah, blah, blah” he’s written time and time and time and time again.

    Must be slow at the USPTO today.

  33. Lemley: It is precisely at the point of novelty that the patentee should be forbidden from substituting broad functional language for an actual implementation of the invention. I should be able to include “an analog-to-digital converter” in my claim if ADCs are well-known in the art and not the focus of my invention, but if I am the first person to have invented a way of converting data from analog to digital format I shouldn’t be allowed simply to claim “an analog-to-digital converter” without any limitation as to how the invention works.

    Many of us arrived at this conclusion independently of Professor Lemley years ago. It’s a very fundamental and non-controversial proposition, as simple to understand as the proposition that claims in the form [oldstep]+[newthought] cannot be both patentable over the prior art and patent-eligible. And yet both propositions were met and continue to be met by mindless jeering and name-calling (yes, even our patriotism has even been questioned as we are told over and over again that ending the special treatment of software claims will somehow “hurt” America).

    In some cases, the bitter, kneejerking reactions of many proponents of the kiddie glove treatment of software claims may be understandable. Many of them may fear a more difficult career ahead. The transition from claiming a “new” method of, say, targeting ads using information from a “handheld device, wherein the device has a swipeable user interface” to properly claiming an actual technical improvement is going to be extremely difficult for some practitioners. Likewise, NPE/troll types who were banking on a big windfall from asserting such claims may need to find another method of grifting/skimming from the economy (but nearly all of those folks are experts at that already).

  34. It’s nice to see that decline. M+F claiming is never a good idea. The number of patents that issue with *only* claims reciting M+F language (and not as “back up” claims) must be close to zero percent and my guess is the percentage of such patents has been lower than 10% for the past five years or so. They’ve been relentlessly criticized here and elsewhere since the beginning of patent blogs so there’s no excuse for not understanding their shortcomings.

    Professor Mark Lemley has suggested that courts begin to interpret software claim terms as being written in means-plus-function format. In all likelihood this would severely limit the scope of many software related patents and would also lead many of them to be invalidated under MPF-indefiniteness.

    Most of them are invalid or ineligible anyway under one statute or another. The software patenting game is to use words like “capable” as shorthand for code that “anyone can write” once they know the desired result (all that is actually recited) of the programming. But the industry has relied on very special kiddie glove treatment for a long time, with an entire generation of prosecutors growing up believing that they are entitled to claim “inventions” in the abstract and distinguish such “inventions” from the prior art by giving new names to the information going in and out of their precious computer brains.

    I can remember when certain software prosecutors complained about having to “limit” their “inventions” to being computer-implemented. When the big pieces of deux-deux start hitting the fan these coddled fanboys are going to really start howling.

  35. The USPTO better hope MPF claims never come “back in favor.” There are maybe 2 examiners that are capable of examining them properly, and even if the rest were properly trained, that type of substantive examination would upset the keyword search/cut and paste work conditions….you might need union approval for such a drastic change in practices.

  36. LOL – as 6 types his anti-software patent claptrap into devices that have loads of “abstract” ideas…

    It’s like Salem and the magic mushrooms all over again.

  37. It’s not turtles all the way down. Any algorithm will reduce to a novel combination of algorithms already in the public domain, like those for doing multiplication.

    The patent worthy element is the novel combination, not the known building blocks, just as for mechanical devices. In a M+F claim, you don’t have to describe how the screws are made, not unless they have to be specially made for that machine.

  38. So MPF claims have “fallen out of favor”!! Sure, be hip and ignore the statute!!
    Morse doesn’t hold broadly that MPF has bad breath and courts narrowing MPF claims don’t understand equivalents.

    Sure a MPF can be very broad. But that opens the door to invalidating prior art. It’s a risky choice applicants are by statute entitled to make. Yet CAFC typically has eviscerated the provision because the anti-software crowd wants to de facto eliminate –software!!

  39. Or you could just understand that algorithms are themselves abstract ideas and just toss the algorithm nonsense out the window along with the rest of the software sht.

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