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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 Michael W. Mitchell and Edward Roche
The decision in Brammer v. Violent Hues sheds some light on when re-posting will be a “fair use” and when it will give rise to liability.
By Rob Maier
The trade war between the United States and China has had far-reaching effects on international trade and the global economy. The dispute is slowly developing into a battle of attrition, without any immediate resolution on the horizon despite ongoing trade talks. As businesses change the way they operate in response to this unpredictable trade environment, counsel should consider the risks and potential impacts on corporate IP strategy.
By Alan L. Friel
Part One of a Two-Part Article
The California Consumer Privacy Act (CCPA) is a comprehensive new consumer protection law set to take effect on Jan. 1, 2020. In the wake of the CCPA’s passage, approximately 15 other states introduced their own CCPA-like privacy legislation, and similar proposals are being considered at the federal level. Part One of this article covers how the CCPA applies to businesses — both in and outside California, the revenue threshold, proposed amendments and other open issues.
By George Soussou and Jeff Ginsberg
More Than a Recitation of Hooke’s Law Needed for Patent Protection
A Claim for a Chair Limits the Claim to a Chair