Software patents could be described in claims as methods or as systems. One cannot claim damages for infringement of METHODS until the method is used (e.g. when the software is run). But, one can claim damages for infringement of SYSTEMS simply from their marketing/sale in the marketplace. So, why do most applications describe software patents as METHODS instead of a general leaning by the authors toward writing them as SYSTEMS? It seems the SYSTEM language would be preferred.

1 Answer 1


For a complex computer implemented invention it

is advisable to have independent claims for a system, for a method and for a so-call CRM (computer readable medium). For a device, machine or system that comes all together from one vendor ready to do what it does (egg beater, laser printer, machine gun) a claim on the "thing" is usually more desirable than method of use of the thing. As you point out, the manufacture is infringing just by making and offering for sale. We would say it infringes just sitting on the shelf in a box. And the infringing party is the one that you want to go after.

For a system made of many computer related subsystems (server, storage sub-system, client, router, internet, interconnect and software) there is probably not one entity providing the whole system. To infringe a system claim some single entity must have made, offered for sale, sold, or used the entire system as positively recited in a claim. Maybe some parts of the system are not only provided by a 3rd party but are located outside the U.S. To infringe in the U.S. the system has to be in the U.S. (a simplification). A method claim can be written so that all of the actions or steps occur in one place. "a) Send a file far away, b) wait for it to be returned translated into another language; c) . . . ". Locally we are sending and waiting. Another set of claims takes the other end "a) wait for a file from far away, b) translate it to a different language, c) send back the translation . . . ".

A CRM claim is to a non-trantientory medium holding the bits to instruct a machine to carry out a method. There the actual "bad guy" probably is manufacturing and selling the thing.

  • Your commentary is great thanks. Appreciated. I still wonder why so many attorneys only write software method claims and do not bother with system claims. Commented Oct 29, 2013 at 1:30
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    Sometimes you see patent applications with a claim of the form "method for foobarbazzing", and further down a claim of the form "apparatus and system for foobarbazzing", with the dependent claims of each mirroring the same phraseology. In the granted ones often the "apparatus and system" ones have been struck down by the patent office, but the method ones survived. Commented Dec 17, 2015 at 18:34

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