Part II reviews these insights from the Norden model generally. Part III brings these insights to the disclosure doctrines for software patents, with particular emphasis on the unpredictability factor for undue experimentation within enablement. The model corresponds well with enablement and best mode but does not correspond as well with other disclosure-prompting doctrines whose role is related to defining the claim. Thus, the review in Part III of written description, definiteness, and means-plus-function (§ 112 T 6) claim limitations helps establish the contours of applicability for the Norden model. The discussion of Part III also reviews the current state of the law for software patent disclosure: disclosure burdens are light and do not require disclosure of source code for the software. Thus, software patents may represent the high-water technology in patent law for having your cake and eating it too: trade secrecy protection attaches if the licensing and distribution of the software is according to proprietary licensing: distribution of object code, keeping source code secret. Within this review of software patent disclosure law, the Article contrasts the continuum of possible disclosure modes with the Norden model and patent law's current requirements. Part IV then completes the article by arguing for a change to one of the requirements: reducing the categorical approach to unpredictability in the software arts. All of software should not be deemed predictable. Many niches are, but some are not. Unpredictability is one of eight Wands factors that define undue experimentation,14 but it is particularly important among the factors. Technologically, Part IV explains potential sources for unpredictable or unreliable behavior in software systems. Pragmatically, the progression of software technology since the time of the precedent influencing enablement for software patents suggests a failure by the law to recognize the changes in the technology. Moreover, the disclosure doctrines in software patents have not responded to the expansion of patentable subject matter in the area of software patents. The discussion also helps show that patent law does not necessarily specify what it means by unpredictability, whether the unpredictable arts doctrine only attaches to ungovernable or inestimable items in nature or based on natural principles. Software is different as a discipline because it processes encoded information, where the encoding is derived from human thought. For some, this processing would not fit within a definition of what is "nature." Regardless, the Norden model suggests that an effort-based perspective on disclosure brings notions of unpredictability into the software arts in a nuanced and niche-specific manner.
Greg R. Vetter,
Patent Law's Unpredictability Doctrine and the Software Arts,
76 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol76/iss3/8