The Federal Circuit, in Function Media v. Google, has determined that use of “means” language in a claim can lead to indefiniteness.
Functional Media sued Google for infringement of three patents regarding advertising on multiple websites with various formatting requirements. The district court found one of the independent claims indefinite, and this ruling was appealed to the Federal Circuit.
In particular, the use of the term “means for transmitting” as found in the patent claim was found indefinite. The district court found that the specification did not disclose a structure for carrying out the claimed function as required by 35 U.S.C. § 112 for means plus function claims.
The Federal Circuit affirmed and stated, “[w]hen dealing with a ‘special purpose computer-implemented means-plus-function limitation,’ we require the specification to disclose the algorithm for performing the function.” The Federal Circuit further stated, “[h]ere, there is no specific algorithm disclosed in prose, as a mathematical formula, in flow charts, or otherwise.”
As a result it is clear that an algorithm must be disclosed in software applications when means-plus-function claims are present. Clients should be aware of any means-plus-function language in their patent portfolio and determine whether any issues are raised regarding definiteness of the claims.