Typically software patents describe the invention through a series of flow-charts and other symbolic representation of operations. Usually, the software code itself is not included in the application. Rather, the code is often kept as trade secret. From a practical standpoint, practitioners may want to rethink their approach based on these two associated cases:
- TouchCom v. Dresser, 427 F.Supp.2d 730 (E.D.Tx. 2005) (holding that the software code should have been present to provide structure for means-plus-function claims).
- TouchCom v. Bereskin & Parr (D.D.C) (TouchCom has filed suit against the Canadian IP firm, charging that the firm committed malpractice by failing to submit the software code).
Now, one seemingly important issue in this case is that TouchCom’s patent says that the code is included in “Schedule A” — while in actuality much of the software code was omitted from the Schedule. In addition, TouchCom did not appear to provide any non-code structure either.