Flo Healthcare Solutions, LLC v. David J. Kappos, et al.


Docket No. 2011-1476 (Reexamination No. 95/000,251)

NEWMAN, PLAGER, WALLACH
October 23, 2012

Brief summary: The “failure to use the word ‘means’ creates a rebuttable presumption that the drafter did not intend the claims to be governed by § 112, ¶ 6” that cannot be rebutted if the disputed term “is used in common parlance by persons of skill in the pertinent art to designate structure”.

Summary: Flo appealed USPTO decision rejecting its claims relating to mobile computer workstations for obviousness (13 different rejections) resulting from an inter parties reexamination. During the reexamination, Flo argued that its “height adjustment mechanism” limitation invoked 35 U.S.C. 112, sixth paragraph (means-plus-function) and that a corresponding structure (a “vertical beam”) in the specification was not found in the prior art. The Board agreed it was a means-plus-function limitation but not that a vertical beam was required. The FC panel disagreed that means-plus-function was applicable. The panel pointed out that “failure to use the word ‘means’ creates a rebuttable presumption that the drafter did not intend the claims to be governed by § 112, ¶ 6” which could not be rebutted “when a claim recites a function ‘but then goes on to elaborate sufficient structure, material, or acts within the claim itself to perform entirely the recited function'” (Personalized Media, FC 1998; Mass Inst. Tech., FC 2006; Lighting World, FC 2004 (presumption “not readily overcome”); Masco Corp. FC 2002 (limitation must be “essentially…devoid of anything that can be construed as structure”). In this case, the panel concluded that 112, paragraph 6 to the “height adjustment mechanism” limitation because it is “a term that ‘is used in common parlance by persons of skill in the pertinent art to designate structure” (Lighting World, FC 2004 (at 1359); Greenberg, FC 1996 (112, 6th paragraph inapplicable as “the noun ‘detent’ denotes a type of device with a generally understood meaning in the mechanical arts ”). However, the panel nonetheless agreed with the Board’s conclusion because a “vertical beam” was not a limitation of the claims (“During reexamination Flo presumably could have included a length-adjustable vertical beam limitation in the disputed claims; indeed, Flo did just that with several of the claims that are not on appeal.”) The panel also agreed with the Board’s conclusion that the claims on appeal were anticipated or obvious in view of the prior art.

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