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Patent Law's Functionality Malfunction and the Problem of Overbroad, Functional Software Patents

73 Pages Posted: 23 Feb 2013 Last revised: 4 Oct 2013

Kevin Emerson Collins

Washington University in St. Louis - School of Law

Date Written: August 1, 2013

Abstract

Contemporary software patents are problematic because they are often overbroad. This Article offers a novel explanation of the root cause of this overbreadth. Patent law suffers from a functionality malfunction: the conventional scope-curtailing doctrines of patent law break down and lose their ability to rein in overbroad claims whenever they are brought to bear on technologies, like software, in which inventions are purely functional entities.

In addition to identifying the functionality malfunction in the software arts, this Article evaluates the merits of the most promising way of fixing it. Courts can identify algorithms as the metaphorical structure of software inventions and limit claim scope to particular algorithms for achieving a claimed function. However, framing algorithms as the metaphorical structure of software inventions cannot put the scope of software patents on par with the scope of patents in other arts. Most importantly, the recursive nature of algorithms and Gottschalk v. Benson create to-date unappreciated problems.

Keywords: patent, software

Suggested Citation

Collins, Kevin Emerson, Patent Law's Functionality Malfunction and the Problem of Overbroad, Functional Software Patents (August 1, 2013). 90 Washington University Law Review 1399 (2013); Washington University in St. Louis Legal Studies Research Paper No. 13-2-1. Available at SSRN: https://ssrn.com/abstract=2221950

Kevin Emerson Collins (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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