Alapatt Redux: Support for Functional Language in Software Patent Claims

Authors

Andrew Chin, University of North Carolina School of LawFollow

Abstract

The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit's 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about claim construction under § 112(f), I propose a more stable "concrete causation" standard that is not only applicable to all technologies, but also well-aligned with the reforms in the software field intended by Lemley's proposal.

Recommended Citation

Andrew Chin, Alapatt Redux: Support for Functional Language in Software Patent Claims, 66 SMU L. Rev. 491 (2013)