000042077 000__ 01972cam\a22002535i\4500 000042077 001__ 42077 000042077 003__ SzGeWIPO 000042077 005__ 20240708145858.0 000042077 008__ 200625s2012\\\\sz\\\\\\r\\\\\000\0\eng\d 000042077 040__ $$aSzGeWIPO$$beng$$erda 000042077 041__ $$aeng 000042077 1001_ $$aLemley, Mark A. 000042077 24503 $$aSoftware Patents and the Return of Functional Claiming 000042077 264_1 $$a[Stanford, California] :$$bStanford Law School,$$c2012. 000042077 300__ $$a60 pages 000042077 336__ $$atext$$btxt$$2rdacontent 000042077 337__ $$aunmediated$$bn$$2rdamedia 000042077 338__ $$avolume$$bnc$$2rdacarrier 000042077 520__ $$aCommentators have observed for years that patents do less good and cause more harm in the software industry than in other industries such as pharmaceuticals. They have pointed to a variety of problems and offered a variety of solutions. While there is some truth to each of these criticisms, the real problem with software patents lies elsewhere. Software patent lawyers are increasingly writing patent claims in broad functional terms. Put another way, patentees claim to own not a particular machine, or even a particular series of steps for achieving a goal, but the goal itself. The resulting overbroad patents overlap and create patent thickets. Patent law has faced this problem before. The Supreme Court ultimately rejected such broad functional claiming in the 1940s as inconsistent with the purposes of the patent statute. When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal described by the patentee and equivalents thereof. These “means-plus-function” claims permitted the patentee to use functional language to describe an element of their invention, but did not permit her to own the function itself however implemented. 000042077 525__ $$aPublished in : Stanford Public Law Working Paper, no. 2117302 000042077 650__ $$aPatent 000042077 650_0 $$aSoftware industry 000042077 650_0 $$aSoftware patent 000042077 650_0 $$aPatent law 000042077 85641 $$uhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=2117302$$yView this resource 000042077 904__ $$aJournal article 000042077 980__ $$aBIB