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Getting to Know Means-Plus-Function Claims: Does 'Means' Always Mean 'Means'?
Means-plus-function claims are a controversial part of claim drafting. On one hand, patent practitioners face the dilemma of whether or not to use such claims in an application, as they may narrow the scope of the patent protection through their dependence on what is described in the specification. On the other hand, such claims may be a complete, simple and elegant way to claim an invention that uses various types of a certain limitation, as in the software field. If a patent practitioner does decide to use means-plus-function claims, he or she should be aware that using the term “means” does not always mean that the claim is a means-plus-function claim. Likewise, the lack of the term “means” does not always mean that a claim is not in means-plus-function form, as exemplified in the recent case law discussed below.
The statutory basis for means-plus-function claims is found in 35 U.S.C. '112, ' 6 which provides the following:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Before drafting the claims, it is useful to have an understanding of what terminology the Federal Circuit considers to be in means-plus-function form. In construing claims that include a means-plus-function limitation, a court will first identify the claimed function and then the corresponding structure in the specification for performing the claimed function. But before doing so, the court must determine whether the particular limitation is in fact a means-plus-function limitation and it is in that determination where things can become unpredictable.
Determining whether a claim limitation is a means-plus-function limitation subject to 35 U.S.C. '112, ' 6 is a matter of claim construction which the Federal Circuit reviews de novo. Claim limitations that use the term “means” create a presumption that the limitation is a means-plus-function limitation. However, it is possible to rebut the presumption. It may be that a court finds that “means” does not really mean “means.” The presumption can be rebutted if the claim limitation at issue recites a function, but also elaborates sufficient structure, material, or acts within the claim itself to perform the entirety of the recited function. Courts focus on whether the construed claim recites a sufficiently definite structure to avoid falling under the statute. Personalized Media Communications, LLC v. International Trade Com'n., 161 F.3d 696 (Fed. Cir. 1998). If a patent claim uses the term “means” but does not recite a corresponding function, then the claim is not in proper means-plus-function form. Medical Device Technologies, Inc. v. C.R. Bard, Inc., 7 Fed. Appx. 945 (Fed. Cir. 2001).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?