More Problems With Patent Claims

So now we agree that the patent claims need to be infringed by the client’s competitors. But there are so many other things that can go wrong with patent claims. It is amazing how many claims are not infringeable.

One classic example of this arises for inventions based on a client server computer architecture:

A system for handling commercial transactions comprising:
a remote server for performing central server functions; and
a plurality of local clients connected to the server for performing local client functions.

Let’s say Megacorp runs a wildly successful service selling things to millions of customers over the Internet. But they do not directly infringe the above claim because they just run a server and do not operate any of the clients which belong to their customers. And vice versa, Megacorp’s customers do not directly infringe because they just operate the remote clients and have no control over Megacorp’s server. No one directly infringes.

Another example:

Computer software comprising:
program code for operating and controlling a microprocessor; and
program code for optimizing data transfers required by the microprocessor in a cool new way.

I call this the Microsoft-plus claim. The first claim element recites Microsoft Windows software. The second claim element is something to help Windows run better. So the only possible direct infringer is Microsoft (ignoring Apple OS X to make my point). Are the assignees of this patent really styling themselves as direct competitors of Microsoft (or Microsoft and Apple for all you OCD’ers)?

My point is that it is easy for unskilled hands to write patent claims that are not directly infringed, or not directly infringed by the right party. And that can be an enormous problem.

Now some patent attorneys would jump to argue that even without direct infringement the patent claims may still be usefully enforceable against the right party. That would be a transition into a discussion of some ideas known as inducement and contributory infringement. In my book these terms are hopeful code meaning: “Hey, maybe we’re not totally fucked.” To which I would answer: “Yes, you are.” I’ll explain why next time.