Virtual Links

Defending Software Patents: The “Virtual Link” Patent Claim Approach

The Juhasz Law “virtual link” approach to software patents provides what we believe to be a precise and defensible boundary line for gauging the subject matter patentability of software that does not physically manipulate a physical or tangible object, by defining the existence or absence of a definitive link between data manipulated by software to a physical or tangible object.

In Bilski, the Supreme Court reinforced the finding in Diehr that software is patentable subject matter when it manipulates a physical or tangible object, since that manipulation, if central to the claim, does not preempt a fundamental principle. We call this condition of software acting on or manipulating a physical or tangible object a “physical link.”

In the wake of Bilski, lower court decisions have highlighted the problem of accurately defining the “preemption” boundary line 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.

Attorneys from Juhasz work directly with company executives, or with in-house counsel involved in patent claim drafting, claim writing and claim evaluations to apply this “virtual link” analysis where software is found to be without the “physical link” of Diehr. In such cases, we help focus on patent defense where data can be shown to be a representation of a physical or tangible object, as in the Fifth claim of Morse. For more detailed analysis, see “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.”

The “Virtual Link” Approach After Bilski

Where software is without an obvious “physical link,” the Juhasz Law “virtual link” approach provides the potential for a clear and defensible boundary line based on our analysis of Bilski and related cases.  This boundary line is defined by the existence or absence of virtual links between the data manipulated by the software and a physical or tangible object.  As shown in the Figure below, a software protection program that considers “virtual links” together with “physical links” provides sound fundamentals for the protection of software.

Figure: Virtual Links Patent Claim Defense

The test for accurately defining the boundary line beyond which software preempts a fundamental idea lies in defining what data are manipulated by the software instructions.  It is in the “link” of the data to a physical or tangible object that provides the boundary line for patentability of software.  In Diehr, software data that manipulates a physical or tangible object (i.e., “physically links” to a physical or tangible object) is patentable subject matter (e.g., the software manipulated data in Diehr signaled a device when to open the molding press and remove the cured rubber product).  The same should be considered true for “virtual links” where the data are representations of a physical or tangible object, as in the Fifth claim of Morse (e.g., Morse code dot and dash signs representing the changing state of a physical object, such as on-off  tones, lights, or clicks, in telegraphaphic use were held patentable).  Software that “manipulates data representing a physical or tangible object” (i.e., that contains a “virtual link”) should be subject matter patentable under the Supreme Court’s Morse precedent.

This link of data to something “real” provides the clue to the patent eligibility of software.  The “Virtual Link” Patent Claim Approach helps define that link in software.  

Contact Paul Juhasz at (281-741-0633) for insight on how to apply this defense to your business property.