What constitutes undue experimentation in computer programming patent applications?
Undue experimentation in computer programming patent applications is a key consideration in determining whether a disclosure is enabling. The MPEP states:
“The amount of experimentation that is considered routine will vary depending on the facts and circumstances of individual cases and should be reviewed on a case-by-case basis. No exact numerical standard has been fixed by the courts, but the ‘amount of required experimentation must, however, be reasonable.'”
The courts have provided some guidance on what may be considered reasonable or unreasonable:
- In one case, a skilled programmer writing a general computer program within four hours was considered reasonable experimentation.
- In another case, a required period of one to two man-years for skilled programmers to develop a particular program was deemed “a clearly unreasonable requirement.”
Examiners should challenge disclosures that fail to include the programmed steps, algorithms, or procedures that the computer performs to produce the claimed function. These can be described in various ways, such as with a reasonably detailed flowchart.
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