Defending Software Patents: The “Physical and Virtual Links Test” Patent Claim Approach

The Juhasz Law “physical and virtual links test” approach for software patents provides what we believe to be a precise and defensible boundary line for gauging the subject matter patentability of software. It works by defining the existence or absence of a definitive link between software instructions or data and 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. In Diehr, the electrical data or signals generated by the software instructions manipulated the physical [not tangible] objects of a “mold” and a “press” through the steps of “loading of the mold” and “opening of the press.” We call this condition of software acting on or manipulating a physical or tangible object a “physical link.”

In Morse, the Supreme Court found the Fifth claim of Morse to be patent eligible, which recited dot and dash signs, known as Morse code. The dot and dash signs may represent a physical thing such as the physical state of a telegraphic switch being opened and closed. The dot and dash signs may also represent a tangible thing such as sound or light being turned on and off. We call this condition of software acting on or manipulating data that represents a physical or tangible object a “virtual 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 “physical and virtual links test” approach to software patents enables the Bilski “preemption” yardstick to more easily measure that boundary line.

Attorneys from Juhasz work directly with company executives, in-house counsel, and inventors 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” that is present in 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 Figure 1 below, a software protection program that considers “virtual links” together with “physical links” provides sound fundamentals for the protection of software.

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Figure 1: Virtual Links Patent Claim Defense

The test for accurately defining the boundary line beyond which software preempts a fundamental idea may thus lie in defining what the software instructions or data are doing. If they are manipulating a physical physical or tangible object, such as opening the molding press and removing the cured rubber product, as in Diehr, the software contains a physical link and so should be patent eligible. If they are manipulating a representation of a physical or tangible object, such as the dot and dash signing in Morse, the software contains a virtual link to something real and so should be patent eligible.

This link of data to something “real” provides the clue to the patent eligibility of software. The ““physical and virtual links test”” patent claim approach helps define that link in software.

Contact Paul Juhasz for insight on how to apply this defense to your business property.