Smartphone Apps: Difference between a device and software?

Question

If a patent makes claims about a "device", but not about "software", does that mean I can make apps without infringing, and would my app potentially be patentable?

Example: Say I want to write a skydiving app that vibrates in different patterns as you fall through altitude zones. However an existing patent makes the claims below.

1. A device to calculate skydiving metrics of a jumper, the portable device comprising: a housing having a physical size and shape that is adapted to couple to the body of the user; a motion sensor, to generate data representative of motion of the user; an altitude sensor, to generate data representative of the change in altitude of the user; processing circuitry, coupled to the motion and altitude sensors, to calculate activity metrics, wherein the processing circuitry: calculates a motion metric using the data which is representative of motion of the user, calculates an altitude metric using the data which is representative of the change in altitude of the user, and calculates at least one metric of the jumper.

2. The device of claim 1 wherein the processing circuitry determines a jump mode of the jumper using the data representative of motion and calculates jump metrics of the user.

3. The device of claim 1 further including a physiological sensor, disposed in the housing, to generate data representative of physiological information of the jumper and processing circuitry is coupled to the physiological sensor to calculate a physiological condition of the user using the data which is representative of the physiological information of the jumper.

ps - I'm new to patents and know this may be a dumb question or not precisely answerable. However I appreciate as much insight into the issue as possible given the information.

Answer 1

Direct infringement requires making, offering for sale, selling or using the patented thing. You selling your software would presumably not be direct infringement of those specific claims since you are not making, selling, etc. such a "device". However anyone who buys your app is using it to turn their phone into such a device. If the resulting device has all of the features of a claim and your software has no other use, then you are probably inducing infringement, contributing to infringement,etc. And technically if you ever tested your software you would have been using such a device.

The claims require the device to have an altitude sensor. Where does that come in? If your app runs on a standard phone without an altimeter, then it is hard to see how these claims apply at all.