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Federal Circuit Reaffirms the Proper Analysis for Whether a Claim Limitation is a “Means-Plus-Functi

ZeroClick, LLC, v. Apple Inc., No. 17-1267 (Fed. Cir. June 1, 2018)

The Federal Circuit reversed the district court’s finding that the asserted claims in ZeroClick’s ’691 and ’443 patents were invalid for indefiniteness as having means-plus-function claims for which the specification did not disclose sufficient structure. The Federal Circuit held that the district court failed to undertake the relevant inquiry and factual findings when determining that the asserted claims contained means-plus-function limitations. The opinion was filed by Circuit Judge Hughes and joined by Judge Reyna and Judge Taranto.

The claims at issue did not contain the term “means.” As the Federal Circuit stated, “[t]o determine whether § 112, para. 6 applies to a claim limitation, our precedent has long recognized the importance of the presence or absence of the word ‘means.’” ZeroClick, LLC, No. 17-1267, slip op. at 6. “The failure to use the word ‘means’ creates a rebuttable presumption that § 112, ¶ 6 does not apply. But the presumption can be overcome, and § 112, ¶ 6 will apply, ‘if the challenger demonstrates that the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function.’” Ibid.

To overcome the presumption against a means-plus-function limitation, “the essential inquiry remains ‘whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.’” Ibid. Here, the Federal Circuit cited a lack of evidentiary support to rebut the presumption, and therefore held that the presumption against a means-plus-function limitation had not been overcome. This is an interesting opinion for practitioners drafting patent applications having claim terms that may not have an accepted meaning in the art.

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