February 2013

CFAA – “without authorization” and “exceed authorized access”

This blog has previously covered the division of authority concerning how to interpret “without authorization” and “exceed authorized access” under the Computer Fraud and Abuse Act, 18 USC § 1030.  Does the CFAA merely prohibit logging in to a system one is not authorized to access, or does the CFAA impose liability on those who use their authorized access in unauthorized ways?  The Findlaw site has a nice write-up on the circuit split that has evolved over the last few years on this issue.  It is a good summary if you need to research this topic.

Functional Language Can Have Patentable Weight

The Federal Circuit has held that functional language in a software claim should be given patentable weight.  In re Jasinski, No. 2012-1482 (Feb. 15, 2013). Accordingly, the Court reversed the U.S. Patent and Trademark Office’s rejection of claims as allegedly anticipated.  If applied to claims in other software patents and patent applications, this decision, although designated non-precedential, could be significant. Specifically, the patent examiner had contended, and the Board of Patent Appeals and Interferences agreed, that certain recitations were merely statements of intended use, and not to be given patentable weight. These include recitations in a claim preamble of “a method for verifying the accuracy of logical-to-physical mapping software designed for testing memory devices,” and a recitation in the claim body of: [d] comparing said fail memory locations derived by said logical-to-physical mapping software to said various predetermined memory locations to verify the accuracy of said logical-to-physical mapping software. The Federal Circuit Panel, in an opinion authored by Judge Moore, and joined by Judges Prost and Clevenger, agreed with the patent applicant that [n]ot only does the “to verify/verifying” language refer to the “essence of the invention,” it also provides the criteria by which the previously-recited comparing limitation is analyzed. We… Read More »Functional Language Can Have Patentable Weight

Means-Plus-Function Claims Indefinite Without Supporting Algorithm

If a claimed means requires programming to carry out a specified function, then a patent specification must disclose an algorithm to support the claimed means. Absent such disclosure, means-plus-function claim elements are indefinite, and render a patent claim invalid under 35 U.S.C. § 112, according to the court in Microsoft Corp. v. Motorola Inc., No. C10-1823 JLR (W.D. Wash. Feb. 7, 2013). The court’s opinion will likely get attention from many commentators as an interesting pro-Microsoft development in this long-running and high-profile patent litigation. This post simply summarizes the basis for the court’s indefiniteness holding, which, although not citing the Federal Circuit’s recent Eplus v. Lawson decision, amplifies but does not seem to deviate from that case or earlier precedent. The patents-in-suit, which all rely on a common specification, are United States Patent Nos. 7,310,374, 7,310,375 and 7,310,376. These patents are directed, “at a high-level,” to “systems and methods for encoding and decoding a bitstream (or sequence) of digital video data.” Microsoft brought a summary judgment motion of invalidity directed at certain claims that included recitations of “means for decoding” and “means for using said plurality of decoded smaller portions to construct a decoded picture.” Looking at the first step of means-plus-function claim… Read More »Means-Plus-Function Claims Indefinite Without Supporting Algorithm

“Substantially Centered” Not Indefinite in Patent Claim

The phrase “substantially centered” does not render a patent claim indefinite under 35 U.S.C. § 112, according to the court in the ongoing Apple-Samsung patent litigation. Apple, Inc. v. Samsung Elecs. Co., No.: 11-CV-01846-LHK (Jan 29, 2013, N.D. Cal.). At issue was claim 50 of U.S. Patent No. 7,864,163 (reproduced in full at the end of this post), directed to a “portable electronic device” that included a touchscreen display and instructions for including boxes that were “substantially centered” in the display. The court first dismissed Apple’s argument that Samsung had waived its indefiniteness argument by not seeking to have the court construe the phrase “substantially centered,” or including its indefiniteness argument in its pretrial statement. According to the court, “failure to seek construction of a term during claim construction does not constitute waiver of an indefiniteness argument.” The court noted that the applicable Local Patent Rules limited the number of terms a party could seek to have construed. Further, Samsung did raise the indefiniteness issue in its invalidity contentions, and in its proposed jury instructions. During trial, Apple agreed that the issue could be addressed in post-trial motions, and the court had indicated that Samsung could raise the issue in a… Read More »“Substantially Centered” Not Indefinite in Patent Claim