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[khazzah]

For software based means plus function claims, Arisocrat requires that the disclosure must include the corresponding structure and that the corresponding structure is the algorithm for performing the functionality.  The explicit disclosure of corresponding structure part is straightforward interpretation of 112, 6th.  That the structure means the algorithm is relatively new federal circuit law. 

That is the holding of Aristocrat, but Aristocrat isn't new law at all. The "corresponding structure for a general-purpose computer means an algorithm" goes way back to WMS Gaming, which was in the late 90s. Aristrocrat gets all the press, but as far as I can tell, it's a very straightforward application of WMS Gaming. I can't see how Aristrocrat even applies a new spin or gloss to WMS Gaming.

[I won't get into how stupid I think it is to say "an algorithm is structure". An algorithm is function, not structure.]

but simply disclosing "pixelating means" and defending that disclosure by saying that one of ordinary skill could select a known algorithm seems like a loser where 112 6th is invoked.

Yep. This argument lost at the Fed Cir lost just a few months ago -- Encyclopaedia Britannica v. Alpine Electronics, Inc.

On the other hand, if you claim and disclose a pixelation circuit you can probably avoid invoking 112, 6th paragraph and thus avoid the explicit disclosure requirement altogether.

Minor tweak: I think the question of whether 112P6 is invoked in the first place revolves solely around the claim language and has nothing to do with the disclosure. Once 112P6 is invoked, you look to the disclosure to see whether the claim is definite or not.

I'm a little confused by Isaac's reference to circuit. If you expect the function to be implemented in hardware, then yes, disclose a "circuit" that performs that function. [Could this "circuit' be a digital logic block diagram?] But if you expect your function to be implemented in software, I don't see how claiming a circuit will help you.

[JimIvey]

An interesting thing about that case is that 112p6 was applicable despite the lack of "means for ____ing" in the claims -- though because both parties agreed that 112p6 applied, not because of law controlling that issue.

There is plenty of case law out there supporting interpreting "means" just like "means for".  I'm not all that surprised that Aristocrat did not pursue that issue.

My point was that it could have been very much on point to the OP's question, but wasn't since that issue wasn't contested.

Like I said, the last I heard from the Federal Circuit on the topic, "means to do something" was not "means for doing something."  And, I really wish I had some idea how to find that case without doing a full-blown research project, though -- given what others are pointing out here -- that case might have been an aberration.

From the perspective of someone who writes applications rather than fights about them after issuance, I use "means for doing something" if and when I want to invoke Section 112p6 and steer clear of "means" or "for doing something" or "some generic thing to do some function" when I want to avoid Section 112p6.  That's one of those things my clients shouldn't have to pay someone to second guess years from now.

Regards.

[Isaac]

But if you expect your function to be implemented in software, I don't see how claiming a circuit will help you.

It would not help of course.  I was attempting [1] to contrast the treatment of claims to hardware inventions and software implemented inventions.  

I believe that for hardware claims it is trivially easy to avoid mpf and to thereby avoid the requirement to recite an algorithm even where the claimed structures are recited in functional terms.  Just use the words "device" or "circuit" in the claims.  Avoiding "means for" language may not be enough.

[1] and perhaps, failing...

[Isaac]

From the perspective of someone who writes applications rather than fights about them after issuance, I use "means for doing something" if and when I want to invoke Section 112p6 and steer clear of "means" or "for doing something" or "some generic thing to do some function" when I want to avoid Section 112p6.  That's one of those things my clients shouldn't have to pay someone to second guess years from now.

If you use functional language and recite insufficient structure to perform the functionality, then your claim may be interpreted to invoke 112p6 even if you don't use "means for".   Some words like "printer" and "optical sensor" imply sufficient structure while other words like "parser" or "interpreter" might not.  Hardware claim drafters can simply throw in words like "device" or "circuit" but software claims drafters have to be more creative.   Alternatively software drafters can simply disclose an algorithm or the underlying steps for performing every claimed function.

[khazzah]

I was attempting [1] to contrast the treatment of claims to hardware inventions and software implemented inventions.

Gotcha. You make a good point: hardware and software implementations are treated very differently when it comes to MPF.

I believe that for hardware claims it is trivially easy to avoid mpf and to thereby avoid the requirement to recite an algorithm even where the claimed structures are recited in functional terms.  Just use the words "device" or "circuit" in the claims. 

I think "device" offers less protection than "circuit", but I agree that "circuit" is quite safe [under current case law].