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The Federal Circuit’s en banc decision in Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015), expanded the potential application of 35 U.S.C. §112, ¶6, making it more likely that functional claim language will be construed as a means-plus-function limitation even in the absence of the word “means.” Patent claims that recite functions in connection with nonce words like “module,” “mechanism,” “element,” “device,” or even “processor” are now more likely to be deemed means-plus-function limitations. Whether a claim term is or is not subject to §112, ¶6 may be dispositive in some patent cases. For example, the specification must disclose a structure or algorithm for performing the means-plus-function limitation, and if no such structure is disclosed, the claim will be held invalid as indefinite. Recent cases applying Williamson have reached different results, with some decisions finding claims subject to §112, ¶6 and invalid for lack of structure and other decisions finding software claim terms to recite structural limitations not subject to §112, ¶6. While most of the decisions to date have been in the computer-related arts, interesting parallels exist in the life sciences and pharmaceutical fields. Below, we discuss recent decisions applying Williamson and provide practical insights and strategies for patent owners and accused infringers to consider when addressing the expanded application of §112, ¶6.
By Peter Kidd
Iancu v. Brunetti
The Supreme Court held the bar against registration of immoral or scandalous marks “collided” with well-established free speech doctrine, namely, that laws disadvantaging speech based on the views expressed thereby violate the First Amendment.
By Charles A. Cartagena-Ortiz
The U.S. Supreme Court issued its long-awaited decision in Mission Product Holdings, Inc. v. Tempnology , ruling that a trademark licensee can retain its rights under a trademark license agreement that is rejected by the licensor as an executory contract in bankruptcy.
By Dorothy Leray and Jeff Ginsberg
Federal Circuit Affirms PTAB Decision Finding Lack of Written Description for Methods of Detection
Federal Circuit Dismisses Appeal of IPR Decision for Lack of Standing
By Karen Hoffman Lent and Kenneth Schwartz
The DOJ’s intervention, and the judge’s ultimate decision, has exposed tensions between the DOJ and FTC, and within the FTC itself, and public scrutiny is far from over as the case heads to the Ninth Circuit on appeal.