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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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Wednesday
Jan062010

Means-Plus-Function Claim Element Does Not Cover "Spectrum of Undisclosed Structures"

Restaurant Techs. Inc. v. Jersey Shore Chicken (Fed. Cir. Jan. 6, 2009) (nonprecedential)

In this case, the district court granted summary judgment of noninfringement of certain patent claims directed to a system for the distribution, filtering, removal, and disposal of cooking oil for use in restaurant fryers.  The Federal Circuit, in a nonprecedential opinion by Judge Lourie, affirmed.

At issue in this case were the claim constructions of three terms.  Two of these terms were written in means-plus-function format.  Of particular note was the construction of the term "control means for selectively operating said filtering, waste supply and fryer valve means and for selecting a pipe path between a predetermined pair of said stations."  The district court had found that this element had the function of "(1) selectively operating the filtering, waste, supply, and fryer valve means, and (2) selecting a pipe path between a predetermined pair of station," with corresponding structures of "a manual system of push-pull knobs, or a partially or completely automated system comprised of microprocessor controls."

Plaintiff argued on appeal that "the specification indicated that push pull knobs and microprocessors were two ends of a spectrum of claimed structures that perform the claimed function, and that the [district] court improperly allowed only those embodiments at either end of the spectrum."

The Federal Circuit found that the patent did specifically disclose the structures of "a series of push-pull knobs and of a partially or completely automated system of microprocessor controls."  However, the Federal Circuit also explained that "[s]ection 112, paragraph 6, only allows the patentee to claim structure that is disclosed in the specification … [t]hus, there is no spectrum of undisclosed structures covered by the patent[-in-suit].  Rather, the patent covers only those structures that are disclosed and their equivalents."

Ultimately, the Federal Circuit agreed with the district court and affirmed summary judgment of noninfringement.

This decision provides an good example of the potential dangers of means-plus-function claiming.