Voter Verified: Does Your Vote Count?
The Federal Circuit recently upheld a decision (Voter Verified v. Premier Election Solutions) from a Florida district court, in which the court ruled that Voter Verified’s patent was not infringed. The patent at issue discloses an automated system for voting in elections, specifically involving a self-verification procedure where machine or human error is detected before the ballot is submitted. The idea is that the machine temporarily records the voter’s choice and then prints out a ballot that can be checked for accuracy by a computer or the voter themselves, before being accepted for final tabulation. Voter Verified claimed that Premier infringed upon their patent; Premier denied infringement and sought declaratory judgments on grounds of obviousness and indefiniteness.
One of the major claims in the patent is claim 49, which details the steps involved for providing self-verification of a ballot. The district court held that claim 49 was invalid because it was obvious due to prior art, specifically the Benson article, which discussed computer safety and security. Voter Verified argued that the Benson article must be searchable over the Internet to qualify as prior art. The issue being whether the Benson article is prior art of a ‘printed publication,’ as defined by 35 U.S.C. § 102(b), as Voter Verified tried to claim. However, the Federal Circuit declared that the Benson article was not only a printed publication and, therefore, claim 49 was still obvious. Moreover, the Federal Circuit stated that the important inquiry was whether the prior art reference—the Benson article—was accessible to the interested public before the voter machines were made. Voter Verified contended that indexing is what determines public accessibility, but indexing is only one of many factors bearing upon public accessibility. Accordingly, the Federal Circuit held that the Benson article constituted prior art relative to the patent because an interested researcher would have found the article prior to the creation of the voter machines. As such, claim 49 was invalid due to obviousness.
In another claim, 1 48, Voter Verified argued that the ballot scanning feature described in the claim could include using the voter themselves as an alternative method for carrying out the ballot scanning function, instead of using a machine. The district court held, and the Federal Circuit affirmed, that a human being could not be a means within the scope of § 112 of the patent act. The Federal Circuit further explained that Voter Verified failed to state how a human could connect to a computer, and that as a result the defendants had not infringed on the patent.
Lastly, the Federal Circuit held that even if a voter followed all the steps in the patent claim, Voter Verified failed to present evidence showing they had control over the actions of the voter. In BMC the Federal Circuit held that liability for infringement of a method claim requires a party to perform every step of a claim or exert control over such steps performed by others. Since the defendants, at most, provided instructions for how to use the machines in question, the Federal Circuit concluded that Voter Verified failed to present a genuine issue of material fact in regards to the infringement. Accordingly the Federal Circuit affirmed the judgment of the district court.
When reviewing this case I reached the same conclusion as the Court; specifically, the prior art invalidated Voter Verified’s claim of infringement. Voter Verified failed to assert proof of infringement, plain and simple. Accordingly, this case will help practitioners know what properly constitutes prior art to satisfy patent infringement claims.