Appeal No. 2006-0316
Application 10/428,930
Webster’s Ninth New Collegiate Dictionary 1176 (9th ed. 1983).”); see also Seattle Box Co., Inc.
v. Industrial Crating & Packing Inc., 731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir.
1984) (“When a word of degree is used . . . [it] must [be determined] whether the patent’s
specification provides some standard for measuring that degree.”); In re Mattison, 509 F.2d 563,
564-65, 184 USPQ 484, 486 (CCPA 1975) (“substantially increase the efficiency of the
compound as a copper extractant”); cf. In re Marosi, 710 F.2d 799, 802-03, 218 USPQ 289, 292
(Fed. Cir. 1983) (“essentially free of alkali metal”).
We find that the limitation “plasma torch includes means for” the function of “injecting a
gas which is substantially free of silica particles between the plasma torch and said preform in
the area of said preform to be heated so as to reduce the power of said plasma in said area”
specified in claim 2 does not define structure which satisfies that function, and thus, the
strictures of 35 U. S. C. § 112, sixth paragraph, apply. See Texas Digital Systems, Inc. v.
Telegenx, Inc., 308 F.3d 1193, 1208, 64 USPQ2d 1812, 1822-23 (Fed. Cir 2002), and cases
cited therein. Therefore, the “means” language in this limitation must be construed as limited to
the “corresponding structure” disclosed in the written description in the specification and
“equivalents” thereof. Donaldson, 16 F.3d at 1192-95, 29 USPQ2d at 1848-50.
The “corresponding structure” is that “structure in the written description necessary to
perform that function [citation omitted],” that is, “‘the specification . . . clearly links or
associates that structure to the function recited in the claims.’ [Citation omitted.]” Texas Digital
Systems, 308 F.3d at 1208, 64 USPQ2d at 1822-23. “[A] section 112, paragraph 6 ‘equivalent[]’
. . . [must] (1) preform the identical function and (2) be otherwise insubstantially different with
respect to structure. [Citations omitted.]” Kemco Sales, Inc. v. Control Papers Co., 208 F.3d
1352, 1364, 54 USPQ2d 1308, 1315-16 (Fed. Cir. 2000). “[T]wo 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. [Citations omitted.]”
Kemco Sales, 208 F.3d at 1364, 54 USPQ2d at 1315. “[T]he ‘broadest reasonable interpretation’
that an examiner may give means-plus-function language is that statutorily mandated in [35
U.S.C. § 112,] paragraph six,” and in this respect, the examiner should not confuse
“impermissibly imputing limitations from the specification into a claim with properly referring
to the specification to determine the meaning of a particular word or phrase recited in a claim.
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