Eric Bear

The dramatic ending of Ridley Scott’s 1991 crime drama, Thelma & Louise, is oft cited as an analogy for the thin line between patent claims being narrow enough to withstand validity challenges but broad enough to maintain infringement value. This tension frames a dance between parties throughout litigation in large part because claim terms are generally not written in ordinary English and need to be translated. But what if we drafted claims with litigation in mind? What if we drafted patents for the people reading and interpreting them rather than suffering unnecessary linguistic sacrifices during prosecution to appease examiners who are just trying to do their jobs?

From an end-user’s perspective, it shouldn’t matter whether the normalization is done in hardware, in software or in a combination of hardware and software. And from the perspective of an interface designer, one would expect to be able to protect an invention that takes raw data from human input and causes a computer to scroll “intuitively” irrespective of whether implemented in hardware, software or a combination thereof. But therein lies our current §101 case law predicament.