Commentary: Lax Section 112 Standards Won't Help the Case for Software Patents

Abstract

Critics of software patents charge that they are too often vague and written in abstract, functional terms. Legitimate in certain cases, the criticism of software patents has gained traction in the U.S. Supreme Court. See Alice Corp. Pty Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014); Bilski v. Kappos, 561 U.S. 593 (2010). As the weapon of choice for eliminating suspect software patents, the Court has tendered an exclusion from patent-eligible subject matter under 35 U.S.C. §101. Unfortunately, the Court’s abstract idea filter is itself abstract, ill-defined, and vague. In Mayo Collab. Servs. v. Prometheus Labs, Inc., 132 S. Ct. 1289 (2012), the Supreme Court rejected the argument that patent law already had a satisfactory statutory rule to rein in vague patent claims — 35 U.S.C. §112, first paragraph, which sets forth the enablement and written description of the invention requirements. The Court failed to appreciate that more rigorous application of §112 standards could result in a significant winnowing of ambiguous, vague software patents. In this brief commentary on a recent Federal Circuit software enablement case, Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671 (Fed. Cir. April 3, 2015), we contend that the appellate court further damaged the cause for greater reliance on §112 standards to police software patents. In our view, the Federal Circuit in Vasudevan Software wrongly resuscitated patents that were likely invalid for failing to comply with the §112 disclosure requirements. Unfortunately, Vasudevan Software tends to prove the Supreme Court’s point — that §112, at least as it is being applied, is not working as an adequate policing mechanism for software patents. This must change.