April 2008, Volume 94, Issue 2
The Low Written Description Bar for Software
by Ajeet Pai
94 Va. L. Rev. 457 (2008)
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This Note focuses on the application of 35 U.S.C. � 112�s �written description� disclosure requirement to software. After tracing the contours of the modern written description requirement, it addresses the seemingly-inconsistent treatment of software and biotechnology inventions under � 112. The Note argues that while functional written descriptions are generally held to be insufficient for biotechnology or DNA inventions (�Gene X does Y� does not pass muster), courts will allow inventions involving software to be claimed via functional descriptions (�Program X does Y� is sufficient)�a much lower descriptive bar. The note concludes that the relative predictability of software development as well as the inherently functional nature of software description account for this differing treatment, and that biotechnology inventions will require less burdensome disclosure as the predictability of that field increases.
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