Before § 101 got big in the early-to-mid 2010's, I recall there being a lot more discussion about construing claims—particularly software claims—to be means-plus-function claims, and then trying to get them invalidated under § 112 ¶ 6 for lack of corresponding structure.
Lately that issue seems to be litigated less frequently, but an order from Judge Andrews today shows that it hasn't faded away completely.
He looked at two claim elements:
a [] translator device adapted to translate data between the exercise communication protocol and the computer communication protocol.
and
translator devices are configured to communicatively couple the first and second exercise devices to the means for comparing so as to facilitate communication of data representative of the performance of each of the plurality of users between the first and second exercise devices and the means for comparing
He found that "device" was a "classic nonce word," and that "translator" merely "describes the function of the device." He therefore found that, absent expert testimony to the contract, the claim elements lack structure and should be construed as means-plus-function claims under § 112 ¶ 6:
At the Markman Hearing, [plaintiff] did state that a POSA would know that a "translator device" is a " piece of hardware that translates from one communication protocol to the next," but [plaintiff]'s expert does not appear to offer a statement to that effect. . . . While the specification does frequently refer to a " translator device," it does not suggest that the term has a defined structure. . . . I agree that the term is properly subject to § 112(6).
After construing these as means-plus-function claim elements, he noted that plaintiff had not disputed the absence of a corresponding structure—i.e., an algorithm—for performing the translation function. He therefore found the claims indefinite.
It's good to see that § 112(b) is still a worthwhile avenue for invalidity of overly-functional software claims (that escape § 101), even when they are not explicitly phrased as means-plus-function claims.
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