Appeal No. 2003-1272 Page 30
Application No. 10/039,338
The scope of the "traction means" limitation, however, is not limited to simply the
corresponding structure in appellants' specification but, rather, would also include
equivalents of ribs/ridges in accordance with 35 U.S.C. § 112, sixth paragraph. While
teachings in appellants' specification are one factor in determining whether particular
structure is an equivalent, the inquiry into what is considered to be an "equivalent" under
35 U.S.C. § 112, sixth paragraph, does not end with the written description portion of
the specification and, indeed, does not end with the specification itself. Our reviewing
court has set forth a test for equivalents under 35 U.S.C. § 112, sixth paragraph, as
follows:
In order for an accused structure to literally meet a section
112, paragraph 6 means-plus-function limitation, the
accused structure must either be the same as the disclosed
structure or be a section 112, paragraph 6 "equivalent," i.e.,
(1) perform the identical function and (2) be otherwise
insubstantially different with respect to structure. Under a
modified version of the function-way-result methodology
described in Graver Tank & Manufacturing Co. v. Linde Air
Products Co. , 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed.
1097, 85 USPQ 328, 330 (1950), two structures may be
"equivalent" for purposes of section 112, paragraph 6 if they
perform the identical function, in substantially the same way,
with substantially the same result. If an accused structure is
not a section 112, paragraph 6 equivalent of the disclosed
structure because it does not perform the identical function
of that disclosed structure and hence does not literally
infringe, it may nevertheless still be an "equivalent" under
the doctrine of equivalents. Thus, if one applies the
traditional function-way-result test, the accused structure
must perform substantially the same function, in
substantially the same way, to achieve substantially the
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