Functional Claiming and Software Patents

Abstract

On Feb 12, 2013, the PTO held a roundtable about software patents at Stanford. Software patents have received a lot of attention and we don't believe it is undue: software patents are behind a disproportionate share of patent litigations -- more specifically, over half (55%) of all patent defendants and 82% of PAE ("patent troll") defendants are there because of a software patent, applying the Graham-Vishnubhakat definition to data provided by RPX Corporation. In this presentation, we more rigorously apply 35 USC 112(f) in accordance with the proposal Mark Lemley outlines in his WIRED oped "Let's Go Back to Claiming the Problem Not the Solution" to 30 patents - 10 PAE and 20 control patents, provided by Patent Freedom. We find that 1) PAE patents are overwhelmingly functionally claimed (100%), but non-PAE patents are also functionally claimed (50%), 2) 40%-50% of the PAE patents were only supported by the highest levels of abstraction, but that 3) not all code is created equal - low-level code over generic elements does not necessarily promote technical progress. We provide 5 examples to support these findings, and discuss their implications.