To borrow a term from the software arts, the functionality malfunction demonstrates that patent law needs to be updated with a software-specific "patch.
The idea of using algorithms to limit patent scope in the software arts is not new in either patent opinions or patent scholarship.
Yet, despite the Federal Circuit's recent, tentative embrace of algorithms, this Article argues that the invention-algorithm equation is far from a panacea for patent law's functionality malfunction in the software arts.
In sum, even though reliance on algorithms as metaphorical structure may represent the best hope for incremental, judicial reform of the problem of overbroad software claims, claim scope is likely to remain relatively less regulable in the software arts than in other technological arts.
Part IV introduces the possibility of employing an invention-algorithm equation to fix the functionality malfunction in the software arts, and it addresses the difficulties that the Federal Circuit will eventually need to confront if it continues its initial, tentative steps down this path.
To lay the groundwork for understanding what is unusual about the scope of contemporary software patents, this Part examines how patent law reins in the scope of functional claims in arts other than the software arts.
221) In the software arts, a computer scientist would answer this same "how" question not by reciting the physical, structural properties of an embodiment of software but rather by stating an algorithm.
When incorporated into the invention-algorithm equation, they offer one route forward for remedying patent law's functionality malfunction in the software arts, resolving the problem of software-patent overbreadth that it has generated and bringing the scope of software patents into line with the scope of patents in other technologies.
One potential objection to the invention-algorithm equation as a mechanism for curtailing claim scope in the software arts is that software inventors deserve anomalously broad, functional claims because a software inventor's "actual invention is functionality" whereas other inventors' actual inventions are only structurally defined means of achieving that functionality.
Substantively, however, all three demonstrate that the Federal Circuit has taken the first, tentative steps toward porting the invention-structure equation over to the software arts in the form of an invention-algorithm equation.
252) This is the invention-algorithm equation at work in the software arts, with algorithms framed as the metaphorical structure of software inventions.