Voter Verified, Inc. v. Premier Election Solutions, Inc.
By Craig Fratrik – Edited by Laura Fishwick
Voter Verified, Inc. v. Premier Election Solutions, Inc., Nos. 2011-1553, 2012-1017, 2012 WL 5382734 (Fed. Cir. Nov. 5, 2012)
The Court of Appeals for the Federal Circuit affirmed the Middle District of Florida’s ruling that the defendants, Premier Software Solutions, Inc., Diebold, Inc., and Election Systems & Software, Inc., had not infringed U.S. Reissue Patent No. RE40,449 (the ’449 Patent) held by Voter Verified, Inc., and that one of its claims was invalid for obviousness. The district court had held that claim 49 was invalid for obviousness under 35 U.S.C. § 103 and claim 94 was invalid for indefiniteness under 35 U.S.C. §112. Voter Verified appealed both the rulings of non-infringement and invalidity as to claim 49.
Voter Verified’s patent was issued on August 5, 2008 and claims a system and method for verified voting in an election comprising both generating a temporary digital record of the vote and then a corresponding printed ballot. A computer scans the printed vote for accuracy against the digital vote, and only records accurate votes. Defendants produce and market verified voting systems that use the voter herself to check the printed ballot for accuracy. Critical for the disposition in this case, an online periodical concerned with computer safety and security called the Risks Digest originally published a similar idea in the Benson article in 1986 via a subscription mailing list and made it available online in 1995, well before the ’449 Patent’s priority date in 2000.
Patently-O provides an overview of the prior art and joint infringement holdings in the case, and notes that the opinion, issued the day before the presidential election (and on appeal from the Middle District of Florida), did not force the court to intervene in voting in Florida. Patents4Life discusses how the “sufficiently accessible” standard leads to tricky questions and potential implications for what sort of online resources will constitute prior art.