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No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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My only concern: Software IS Abstract | 179 comments | Create New Account
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My only concern: Software IS Abstract
Authored by: PolR on Saturday, March 16 2013 @ 05:57 PM EDT
But my thought is that if we can clearly say "this is the software bit, this is the hardware bit", then it becomes much easier to argue "but THIS device cannot infringe THAT patent".
Why is that so? This is not how infringement analysis proceeds. They just go through all the elements mentioned in the claim and check if they are in the accused implementation. If every element checks as present then it is infringement. Nowhere do they ask whether the element is software or hardware. They just ask if it is present.
It should be clear that adding software to general purpose COTS hardware cannot make a "new patent-infringing machine".
This is not clear for the Federal Circuit. We wish to make it clear but it is hard to get there.
That's where I'm trying to go - maybe aimed more at the courts than the patent office - but it helps enforce the importance of "what is new IN THE HARDWARE to make a new machine?".
The legal analysis doesn't work that way. The analysis is done on the claim as a whole. If there is a new element anywhere in the claim then the whole claim is new. Also the combination of elements could be new even though each individual element is not new. Courts are not allowed to dissect the claim to look whether the point of novelty is. They are not allowed to disregard an element of the claim because it is not hardware. The only exception is when they apply the printed matter doctrine. Then they are allowed to disregard the printed matter. This claim-as-a-whole constraint is part of what makes the problem so difficult.
Even a formal statement from the patent office that "COTS hardware + software cannot create a patent-infringing machine" would be a pretty big advance. That promptly gets all software houses off the hook for any possible patent infringement.
Yes it will be a big advance. But it is not as big as you think because of the claim-as-a-whole constraint. Patent attorneys will just include in the claim something which is not the hardware or software and the is no longer just software added to off-the-shelf hardware. This would send the legal problem back to the drawing board.

[ Reply to This | Parent | # ]

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