Print

Please login or register.
1 Hour 1 Day 1 Week 1 Month Forever
Login with username, password and session length

[Gavin84]

I am aware of the Leahy-Smith America Invents Act, and that this muddy's the water. I am concerned with the pre-LSAI Act regime. Here is the language from 35 USCA § 112(6) that I am concerned with:

           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.

My question is this:
         If a means-plus-function claim lists specific structure, does the claim still fall under the purview of 112(6) equivalence      protection?

[NJ Patent1]

"If a means-plus-function claim lists specific structure, does the claim still fall under the purview of 112(6) equivalence protection?"

Gavin: Use of “means for” in a claim sparks a presumption that the element is recited in means plus function format, invoking paragraph 6, which, if I recall, was enacted to expressly allow this format.  There are cases in which courts have found that, the word “means” not withstanding, sufficient structure was recited in the claim such that paragraph 6 was not implicated.  In a litigation, the doctrine of equivalents could be invoked for such claims - subject to all of the usual limitations.  "Equivalents" in para 6 are not necessarily the same as equivalents under the DOE.