For the second time in the same number of weeks, the Court of Appeals for the Federal Circuit, the circuit that hears all patent infringement appeals, has found software claims indefinite because the claims used means-plus-function language, but the specification did not, in the court’s opinion, sufficiently describe an algorithm that operates to make the invention function.
See Noah Systems, Inc. v. Intuit Inc. F.3d __, (Fed. Cir., 2012) and Ergo Licensing, LLC v. Carefusion, __ F.3d __, (Fed. Cir., 2012).
This presents a problem for many existing software patents because, previously, the specification needed only to describe the function sufficiently for one of ordinary skill in the art to understand it. Now, the court appears to be requiring that the patentee disclose a full algorithm.
Many software patents rely on this claiming structure, and a defendant may be able to invalidate at least some of the claims on this basis. If you are relying on this type of claim to protect your software, you should have a Patent Attorney review your patents to give you an idea of where you now stand.
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