Alappat Redux: Support for Functional Language in Software Patent Claims
16 Pages Posted: 1 Jun 2013
Date Written: May 30, 2013
The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit’s 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about claim construction under § 112(f), I propose a more stable “concrete causation” standard that is applicable to all technologies, but would be especially well-aligned with the reforms in the software field intended by Lemley’s proposal.
Keywords: patents, software patents, algorithms, means-plus-function claims, Federal Circuit, USPTO, software partnership
JEL Classification: O34
Suggested Citation: Suggested Citation