35 USC 112, 6th paragraph (Means Plus Function Claims)

by patentbar on November 28, 2007 · 11 comments

in 35 USC 112 (P6), MPEP 2100

35 USC 112, 6th paragraph – “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 thereof.”

Means or Step Plus Function – Although the use of the term “means” or “means for” is often a clear indication that the means or step for function rules apply, the actual determination is base coin whether the element in the claim is set forth, at least in part, by the function that it performs rather than the specific structure, material or acts that perform the function.

The examiner has the initial burden of finding a reference containing both the same function and same supporting structure, materials or acts as the applicant’s claim.

{ 11 comments… read them below or add one }

1 patentbarNo Gravatar March 5, 2008 at 10:24 pm

Claims that contain functional language evaluated the same way as claims that doe not include functional language. So, you can claim an item by claiming what it does in lieu of what it is.


2 patentbarNo Gravatar March 5, 2008 at 11:34 pm

For a means or step plus function, you can use functional language (e.g., amplifying means) to describe the set of apparatus identified in the specification. The structure and function must be disclosed in the specification, but it is ok to just refer to the function in the claims. The examiner will include the identified apparatus (disclosed in the specification) as anticipated by the specification.


3 SeanNo Gravatar March 14, 2009 at 9:45 pm

I have no idea what this is trying to say.


4 JimmyKNo Gravatar May 21, 2011 at 4:51 pm

I am so with you.


5 BoNo Gravatar May 22, 2011 at 11:41 pm

i think you would get a rejection of you were trying to draft a means-plus-function claim, but included a structure modification, or didn’t include functional language in the body.

6 FredsNo Gravatar May 23, 2011 at 3:57 am

A widget consists of A,B and means to hold A and B together

122 p6 says in the specification, the structure that performs holding A and B needs to disclosed. The scope the means of holding A and B as claimed is determined by the disclosure.

I think what Bo meant is that structure cannot be included in the MPF portion of the claim, If it is included, the scope of such language shall not be construed as “means plus more equivalents”
i.e. A widget consists of A,B and means to hold A and B by a nylon string … will not be construed as MPF, but rather as clearly defined

By contrast, If the nylon string is only disclosed in the specification, the means to hold A and B will be construed as the holding method by a nylon string or its equivalent, such as strings made of other materials.

7 BoNo Gravatar May 24, 2011 at 12:57 am

Much better said :)

8 SamNo Gravatar June 19, 2009 at 4:28 pm

How do you get a 112 sixth para rejection? WHat is it?


9 mimiNo Gravatar October 31, 2012 at 12:58 am

I think that 112(6) rejection is impossible. 112(6) is just about ‘means plus function’ or ’step plus function’ claim.
But, 112(2) rejection may arise if a claim is written as a form of 112(6) and the claim has indefiniteness.

If I’m wrong, correct me, please.


10 jpatbarNo Gravatar October 13, 2014 at 1:57 pm

This gives a current explanation: http://patentlyo.com/patent/2013/01/means-plus-function-claiming.html

Basically, the following claim “a means for attaching picture to the wall” -is not- rejected based only on the phrase “a means for..” is what 112(f) or p. 6 pre-AIA means.

This was put in to clarify previous confusion as to whether including “a means for” or otherwise stating some function without pointing out the underlying structure in the claims was per se rejected.

If a means or function, without a structure, is in the claims, then that structure must be in the specification, or then the claim is rejected.

However, any patent practitioner worth his salt stays away from using this. Because if somewhere buried in the spec it says “a picture is fastened to the wall by a nail” and that’s the only structure described in the whole spec, then the claim is limited to only pictures hung to the wall with nails. So what seems like it should be broad in the claims (any means) becomes extremely narrow.


11 LukeNo Gravatar December 6, 2013 at 4:45 pm

My analysis of claim 26 (I am not a judge; I am a Canadian patent agent):

A data processing system to enable the exchange of an obligation between parties, the system comprising:

“to enable…”: unusual wording for a preamble, but nevermind.

a communications controller,

ok !

a first party device, coupled to said communications controller,

What is a party device ??? I understand 112-6 means + function, which should be described in the specification and includes equivalents. I also understand claim construction – claimed terms should be given their common meaning unless defined otherwise in the specification (lexicographer doctrine). Now, the phrase states a first party device. What the f*k is such a device ??? My point: patent Law should require claims to be drafted in meaningful terms, not abstract terms. This is nonsense to have to look at the whole specification to get a figment of what a given term means, to have to look at the whole filewrapper and to rely upon expert witnesses (should I say often if not most of the time influenced by the attorneys – heck, they do their job, which by the current law is necessary) to determine what is the true meaning of a claimed term.

a data storage unit having stored therein (a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and (b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and

Ok… This is something I can understand. But why not reciting simply a data storage unit that stores data ? Data or the kind of data is not patentable… Otherwise, books would be patentable. Let’s say that it is for antecedent basis…

a computer, coupled to said data storage unit and said communications controller, that is configured to (a) receive a transaction from said first party device via said communications controller; (b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and (c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.

It’s so much fun to read. A computer configured to… This reminds me that my patent agent trainer (hell, that was more than 22 years ago) insisted that claims should recite the invention in terms of what it is and how it does it, not in terms of desired results or intended objects. I tried in 1991 to use the term “configure” and it was right away rejected – I am a computer engineer (I remember it very well as it is now a term so widely used). Now, apart from the computer being coupled to the data storage unit and the communication controller, which is a specific material configuration (but well known in the art…), the claim recites in my view nothing else. The computer receives something, adjusts something (how, with what ???) and generates something for (intended object or desired result/purpose)… What is the real invention ? An idea ? An abstract concept ??? Why such a patent receives such a scrutiny from the Courts ? Why a USPTO examiner ever granted it ? There is something wrong with that kind of patents. Obviously, the patent drafter was… or … (money, client’s orders, I hope nothing else…). I have nothing against computer or program/software patentability, as long as it is more than “I programmed something as they asked me and simply did it, without inventing” or, should I say, “thinking of revolutionizing the world with what I finally done”. Software patents should be granted when the invention is a “breakthrough”, not when it is a mere implementation of a new idea, no matter the idea is clever.


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