Although ZeroClick’s finger gesture patents were temporarily brought back to life on appeal, Apple has ample avenues to kill it off permanently on remand back to the trial court in the Northern District of California. The patent, which was drafted pro se by a doctor who wanted to improve the patient charting process without having to click on a pointer, was not invalid on the ground that it should be interpreted in means plus function form (if it were so interpreted, it would likely have stayed dead). Apple did not appear worried.
Apple appears to have simply used the opportunity on a relatively weak patent to try to undermine a huge swath of all software patents that might have been subject to means plus function rules. Had Apple been successful, many more software patents would have been put on life support.
However, the Federal Circuit reversed Apple’s win below, and the result is that software patent claims are more likely to survive if they recite terms like “User Interface Code” or “Program Code,” which makes them more likely to be considered sufficiently definite structure (like “circuit” is for hardware), and less likely to fall under the more challenging means plus function rules.