War on Functional Language Continues
Recently, I noted the PTO’s war on functional language. Basically, the PTO has slowly increased the language that will be presumed to be covered by 35 USC 112(6). Now, an en banc panel of the Federal Circuit has basically put their stamp of approval on this policy in Williamson v. Citrix Online.
Prior to this decision, there was a strong presumption that a claim that did not use the term “means for” did not invoice 112(6) supported by decades of case law.
However, the en banc panel decided the statutory presumption of “means” “has resulted in a proliferation of functional claiming untethered to § 112, para. 6 and free of the strictures set forth in the statute.” Thus, the panel announced that they will no longer require any heightened evidentiary showing to invoke 112(6).
The standard new is 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. When a claim term lacks the word “means,” the presumption can be overcome and § 112, para. 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.”
The war continues.
If a claim limitation is interpreted under 112(6), it will be invalid if its structure is not shown in the specification. Therefore, it is even more important that algorithms and any other structure supporting claim functional language be described in the specification.