July 28, 2014

Another Voting Machine Controversy in Florida? (This Time It’s about Patent Infringement)

Addressing the issue of publication of prior art references and means plus function infringement, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s summary judgment findings of invalidity and non-infringement in a dispute about patents for electronic voting machines.  Voter Verified v. Premier Election Solutions, Case No. 11-1553, 12-1017 (Fed. Cir., Nov. 5, 2012) (Lourie, J.).

These are consolidated appeals from two patent infringement actions between Voter Verified and defendants Premier Election Solutions, Diebold and Election Systems & Software.  Voter Verified’s patents claim systems and methods for voting in an election, including a self-verification procedure to correct errors before a ballot is submitted.  In a series of summary judgment orders, the district court found the asserted claims both invalid and not infringed.  Voter Verified appealed.

At issue in the appeal were both invalidity and infringement issues.  As to invalidity, Voter Verified claimed that the asserted prior art Benson article did not qualify as a printed publication under §102(b) because it was not searchable by pertinent terms or indexed as of the critical date of invention, such that the relevant public would not have been able to locate the article.  The Federal Circuit disagreed, concluding that the Benson article was a printed publication and that the relevant inquiry is whether the reference was sufficiently accessible to the public interested in the art.  The Court explained that while indexing is a relevant factor in determining accessibility, it is only one of many factors. 

The “ultimate question” is whether the reference was available to persons in the art exercising reasonable diligence to locate it.  Specifically, the Court found that the database that stored the Benson article (the Risks Digest) publicly on the Internet included a search tool that would have retrieved the Benson article in response to search terms such as “vote,” “voting,” “ballot” and “election.”  Persons in the art were aware of the Risks Digest as a prominent forum for discussing such technologies. 

As to infringement, the district court had construed the term “ballot scanning means” as a means plus function under §112, ¶ 6, but found on summary judgment that there was no corresponding structure capable of carrying out the claimed function of reading votes on a printed ballot.  On appeal, Voter Verified argued that the voter was the corresponding structure for carrying out the claimed ballot scanning function.  The Federal Circuit rejected this argument, holding that it is well-established that a human being cannot constitute a means within the scope of §112, ¶ 6.  

Practice Note: Prior art is a “printed publication” under §102(b) where it is publicly accessible, and found by searching using well-known and relevant search terms.

© 2014 McDermott Will & Emery

About the Author


Jeremy T. Elman is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Miami office.  He previously practiced in the Firm’s Silicon Valley office.  Jeremy focuses his practice on intellectual property and complex commercial litigation.


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