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Secret Sauce in a patent | 756 comments | Create New Account
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Hum - How about Fonar?
Authored by: PolR on Thursday, July 19 2012 @ 04:50 PM EDT
I think you should read the Fonar case.
As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. It is well established that what is within the skill of the art need not be disclosed to satisfy the best mode requirement as long as that mode is described. Stating the functions of the best mode software satisfies that description test. We have so held previously and we so hold today. See In re Hayes Microcomputer Prods., Inc. Patent Litigation, 982 F.2d 1527, 1537-38, 25 USPQ2d 1241, 1248-49 (Fed.Cir.1992); In re Sherwood, 613 F.2d 809, 816-17, 204 USPQ 537, 544 (CCPA 1980). Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software. See Sherwood, 613 F.2d at 816-17, 204 USPQ at 544.
According to case law, the requirement for disclosures are met when the functions of software are disclosed. Source code and flow charts are not required.

[ Reply to This | Parent | # ]

Secret Sauce in a patent
Authored by: dio gratia on Thursday, July 19 2012 @ 07:17 PM EDT

I came across such a case just recently in a patent application in the United States, METHOD AND APPARATUS FOR CARRYING OUT NICKEL AND HYDROGEN EXOTHERMAL REACTION, Pub US2011/0005506, A1 Jan 13, 2011.

A Cold Fusion patent in which Claim 8:

8. A method according to claim 1, characterized in that in said method catalyze materials are used.
Wherein no where in the publication is the identity of a catalyzing agent disclosed, which would make claim 8 indefinite wouldn't it?

No where in any publicly available information can the identity of a useful catalyst be found. (Useful in the patent sense, increasing the exothermic yield of the reaction in this case).

In the Description:

In applicant exothermal reaction the hydrogen nuclei, due to a high absorbing capability of nickel therefor, are compressed about the metal atom nuclei, while said high temperature generates internuclear percussions which are made stronger by the catalytic action of optional elements, thereby triggering a capture of a proton by the nickel powder, with a consequent transformation of nickel to copper and a beta+ decay of the latter to a nickel nucleus having a mass which is by an unit larger than that of the starting nickel.
No where is the method of introducing these 'optional elements', disclosed nor any constraints on operating conditions, nor the effect they produce, other than "made stronger".

The patent application doesn't teach the claimed invention, the quid pro quo of disclosing the invention in exchange for a legal monopoly for a limited time to advance the art. A practitioner of the art is not enabled to reproduce the invention from it's description.

A careful analysis of the apparatus would demonstrate that other than this missing catalyst a hobbyist chemist with access to a machine shop or machinist could reproduce the apparatus as described, though curiously there is no particular mention of how to convey heat away produced by the exothermic reaction. I'd also recommend that someone procure powdered nickel, producing it is fraught with danger to biological entities.

Now contrast this with software patents, where the level of detail found in a description is also abstract. Should a practitioner of the art find it is possible to construct (manufacture) such an invention from the Description, doesn't that speak to obviousness? If not, there is indeed secret sauce being withheld.

[ Reply to This | Parent | # ]

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