FOR IMMEDIATE RELEASE
(News Release) – May 17, 2011 –The Juhasz Law Firm has introduced a service named “virtual link” patent claim defense for corporate holders of software patents vulnerable to being challenged or struck down in the wake of the Supreme Court Bilski decision of June 28, 2010. This “virtual link” analysis is useful during patent claim drafting or patent claim writing to determine the defensibility under Bilski of a software patent claim that does not manipulate a physical or tangible object (i.e., there is no “physical link” of the software to the physical or tangible object). Under Bilski and Diehr, a software claim containing such a physical link, if central to the claim, does not preempt a fundamental principle and is deemed patentable subject matter. The “virtual link” analysis is also useful in patent assessments and litigation where a patent does not have an obvious “physical link” to a physical or tangible object.
Three recent patent claim decisions in lower courts emphasize the problem of accurately defining the “preemption” boundary line in the wake of Bilski in cases where a “physical link” is not obvious. The “virtual link” approach to software patents enables the Bilski “preemption” yardstick to more easily measure that boundary line.
“The absence of a uniform test for defining the threshold for software patent claims in a way that is understandable, uniform to apply, and leads to consistent results true to Bilski, makes the boundary lines being drawn in these decisions no more precise than lines drawn in the sand,” said Paul R. Juhasz, president of The Juhasz Law Firm.
Based on its analysis of Bilski and related cases, the Juhasz Law Firm believes that the test for accurately defining the “preemption” boundary line lies in determining whether there is a link between the software and a physical or tangible object. Linking the data to a physical or tangible object provides a sound basis for patentability under Bilski. In Diehr, patentability was found based on the existence of a “physically link” to a physical or tangible object (e.g., the software manipulated data signaled a device when to open the molding press and remove the cured rubber product). The same should apply to “virtual links,” where the data are representations of a physical or tangible object, such as in the Fifth claim of Morse (e.g., Morse code dot and dash signs representing changing state of a physical object, such as on-off tones, lights, or clicks in telegraphaphic use were held patentable).
This “virtual link” approach to software patents that are without an obvious “physical link” to a physical or tangible object provides a precise and defensible boundary line—by defining the existence or absence of links from the data manipulated by the software to a physical or tangible object. The “Virtual Link” Patent Claim Approach helps define those links.
For more insight into the impact of these three lower court decisions, read the Blog, “Research Tech, H&R Block, and Bancorp Decisions and Bilski – The Link of Manipulated Data to Something ‘Real’ May Provide the Clue to the Patent Eligibility of Software.”
