Field of Endeavor

This article relates to the functional claim language, i.e. “means or step plus function.” Specifically, we are trying to conduct an explorative study to 35 USC 112(6) which provides that “an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.”

Background Statement

It appears that the functional claim language is one of the most fascinating or controversial topics in the patent world. As a claim or specification drafter, especially for an old one by which we mean a person who is actively involved in the patent society for a certain period of time, e.g. more than 8 years, it is interesting, embarrassing or trapping to be at a loss. For simplicity, we would like to raise an example here. For some twenty years ago, the writer initially got known to how to draft a patent claim and was taught then to make use of functional claim language to the largest extent. Explaining differently, to the knowledge of the writer by then, a set of claims without the introduction of functional language can never be categorized as a soundly drafted claim with the possible misunderstanding that through the function or operation of 35USC112(6), a claim or an element recited in the form of means or steps plus function would be interpreted to include all possible measures which performs the function defined therein. Accordingly, functional language is some kind of claim terminology representative of some kind of omnipresent or almighty weapon. After using the functional claim language several times shortly after the initiative of the patent career of the writer, there comes the shadow in the mind that if the protective scope of a claim or element can be broadened simply because we introduce the usage of functional language in the claim, is this justified? Why does other ‘equivalent’ term, e.g. “cutter” contrasting with “means for cutting” not have the same or similar effect? If for the sake of some kind of fairness, we equate other ‘equivalent’ term with the statutory functional term, how should we construe or regard 35USC112(6)? If we cannot properly answer any of the above questions, why 35 USC 112(6) provides in that way?

Such shadow finally burst up when we got known to the fact that the United States Court of Appeals for the Federal Circuit decided on February 14, 1994 in re Donaldson Company, Inc., ruling in the atmosphere that the functional language as stipulated in 35USC112(6) is limitative rather than extensive. Specifically, an element recited in functional language of 35USC112(6) is limited to be construed to “only” cover “the corresponding structure, material, or acts described in the specification and equivalents thereof.” More particularly, such functional element can only be construed to be referred to any specific structure, material or acts described in the specification and equivalents of such specific structure, material or acts. Terribly, lots of US patent attorneys interpret this decision rendered by Court of Appeals for the Federal Circuit by alerting the applicant that the specification should disclose as many as possible embodiments directed to structure, material or acts in order that a functional element will not be extremely possibly construed not to cover any additional non-disclosed possible embodiment. Here, we can easily find the following issues:

1. Has Court of Appeals for the Federal Circuit clearly expressed its intention or what are its exact opinions in the decision? For example, have most of US patent attorneys correctly interpreted the attitude of Court of Appeals for the Federal Circuit (hereinafter referred to as CAFC)?
2. Is the opinion stated in the decision of CAFC eventually decisive or never overturned by the US Supreme Court?
3. How we should interpret and follow the opinions of CAFC to what extent?
4. Have we precisely briefed the scenario in the above?
5. Have US patent attorneys rightly uttered the opinions on behalf of CAFC?
6. Are we correct in taking that most US attorneys have, through the above alert, nearly confined the coverage of the functional element to those embodiments explicitly disclosed in the specification. The word “equivalents” no more plays any significant role. This is because if that word can properly functions, it appears that it is not so necessary for the applicant to be alerted to try its best to describe all possible embodiments in the specification. Are US patent attorneys right in this position? Did CAFC intend to drive US attorneys to so conduct in view of its above decision?
7. Is such interpretation the original intention of the lawmakers?
8. After the rendering of the above decision, the popularity of adoption of such functional language has been somewhat curbed except in the specific field, e.g. computer program or e-commerce. Is such tendency in violation of spirit of the provision of 35USC112(6), especially in view of the fact that claim drafter is prohibited from such usage not because he does not like the functional language but because he fears the applicant will suffer from a restrictive protection scope through the use of functional language?
9. Is 35USC112(6) a good law? If yes, does CAFC have correctly guided the public or the patent society to follow or to lead the patent life in the future through the above decision rendered thereby?
10. How should we behave ourselves before the CAFC decision? If it is well-done, how should we appropriately interpret and then abide by the instructions of the decision? If not, can we or how should we try to rectify the difficult situation made by CAFC?

All these and other issues are uneasy to be answered or solved. Nevertheless, brains are created to solve question. We do not believe we can solve all of these issues by ourselves. We do not believe we cannot contribute to the clarification of these issues, neither.

Summary of Developments

It is therefore an object of the present article to state our comments or provide our opinions about functional claim language for the possible reference of CAFC and US Supreme Court in the future if what we write do deserve to be so referred to. Upon more and more globalization, not only there presents a trend of the formation of a global village so that the information communication can quickly be made all over the world, but also it might be a good idea to try to influence all the world through the US since till now, the US patent practices, either old or newly developed ones, always or sometimes exerting a tremendous effect upon the patent practices of other countries including ours. Accordingly it is somewhat ridiculous but factual that sometimes it might be the shortcut to try to change one’s domestic patent practice by trying to affect the US practice first.

It is therefore another object of the present article to explore the functional claim language from aspects possibly never touched heretofore, making an attempt at contributing to the clarification or solution for problems resulting from the provision of 35USC112(6) or the above-mentioned decision rendered by CAFC.

It is further an object of the present article to present more problems or aspects possibly worthy of more discussion or debate for possibly helping to expound what 35USC112(6) really is, how it should be and/or in which way it can operate or function satisfactorily.

According to 35USC112(6), “an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” We would like to scrutinize first the statutory prerequisites of 35USC112(6) as follows:

1. Subject: Although what the statue presents is ‘an element in a claim for a combination,’ we would like to raise a question, i.e. is 35USC112(6) merely applicable to ‘an element’ in a claim for a ‘combination’? Is it applicable to a single element claim? According to Webster’s Ninth New Collegiate Dictionary, combination can be inter alia construed to stand for “any of various one-piece undergarments for the upper and lower parts of the body” or “an instrument designed to perform two or more tasks.” Accordingly combination need not be irrelevant to a single piece or compulsory to require two or more elements although the latter happens more often. This is because an element could be called a combination as long as it is some kind of one-piece or can perform by itself two or more tasks or functions. This understanding and argument should not be arbitrarily denied by any one who is skilled in claim-drafting or can be qualified as a patent expert.
2. Opportunity for application: Whether the functional language should be used is up to the applicant because what the statute says is “may be expressed as.” Now there comes the question, i.e. if what are to express are ‘generally’ the same, e.g. “cutter” and “means for cutting,” why the latter should obtain a different, i.e. broader or narrower, scope or legal value? The statute is supposed to seek legal justification. Is this purpose available if we stick to the view that the latter should have a different protecting scope? Isn’t it opportunistic or speculative if we so confirm?
3. Formula: The statutory form is “a means or step for performing a specified function.” The functional language is only a kind of term. Why a term, which can generally be replaced by another term because it is quite easy to find a synonym in today’s searching technique or from more than one hundred thousand words in a modern dictionary, should be so special? Is it constitutional if we so take? How should we convince ourselves or persons irrelevant to the patent society that “means for cutting” can be perfectly differentiated from “cutter” with regard to the ultimate effective protecting scope they are to be respectively conferred with? Why the functional language can have such magic power? Is it fair or equitable?
4. Contents or features: Such functional language contains no recital of structure, material, or acts in support thereof. Through the use of this clause, it appears that we can vividly read the latent consciousness of the lawmaker that functional language is some kind of magic. This is partly because according to 35USC112(2), “the specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” Specifically, in order to ‘particularly point out and distinctly claim’ the subject matter, structure, material or acts in support of the subject matter are normally indispensable. Now that they no more are required, there must exist some kind of magic. Nevertheless, in today’s world of extensively diversified science, it has been nakedly clear that whenever a specific function is required, the pertinent artisan can easily present before you a great multitude of inter-replaceable elements, devices or apparatuses. Under such circumstances, is it really justified for the law to require that structure, material or acts be presented if the requirement of ‘particularly pointing out and distinctly claiming the subject matter’ were to be met? Can our conscience really feel comfortable, cosy, easy or snug if we do require all possible structures, materials or acts be described in the specification in order to be covered in a functional language element?
5. Result: According to the statute, ‘such claim shall be construed to cover the corresponding structure, material, or acts described in the specification.’ It is to be noticed here that the statute uses the words ‘such claim’ rather than ‘such element.’ This is one of the support we claim 35USC112(6) is applicable to the single functional language subject containing only one ‘element’ recited in the form of functional language. More remarkably, it is to be noticed that the statute uses the verb “cover.” According to Webster’s Ninth New Collegiate Dictionary at hand, the ninth meaning of ‘cover’ is ‘to have sufficient scope to include or take into account: COMPRISE.’ Accordingly such open-directed verb is merely used to indicate the possible basic or illustrative members the functional language-defined element or claim is intended to comprise or cover. More specifically, any other element or device which is different in appearance from ‘the corresponding structure, material or acts described in the specification’ but can perform the function defined in the functional language for the element or device (hereinafter referred to as element only for simplicity) should be included by such function-defined element. Are we wrong by so taking? More discussions will be presented later.
6. Coverage: The scope of such function language-defined element includes not only ‘the corresponding structure, material, or acts described in the specification’ but also ‘equivalents thereof.’ In fact, with the emergence of the above decision rendered by CAFC or the interpretation thereof made by most US attorneys, the meaning or possible imagination in relation to ‘equivalents thereof’ has been effectively castrated. Under such circumstance, the statutory words ‘equivalents thereof’ in 35USC112(6) are much like a healthy caecum which is a kind of organ but whose useful or magic functions are not known yet. This is because it is the CAFC decision has unanimously been interpreted to indicate that the functional language-defined element is limitative rather than broadening.

Have we raised enough new issues with regard to 35USC112(6) heretofore? We are of the opinion that above-mentioned discussions do not have exhausted all headache problems but do allude or allure more much headache issues to be explored or dealt with about which the present article is really concerning.

Brief Items to be Discussed for Presenting Issues We Concern

*How should we interpret 35USC112(6)?

Detailed Analyses

*What does the enactment of 35USC112(6) really teach, command or suggest?

Originally, in Halliburton Oil Well Cementing Co. v. Walker, the Supreme Court held invalid a claim that was drafted in means-plus-function fashion. It is believed that the US Supreme Court feared that the means-plus-function language was overbroad and ambiguous. Accordingly if we can show and demonstrate there are no overbroad and ambiguous problems, it appears that the Supreme Court should no more hold such means-plus-function related claim invalid. Specifically, according to the US Supreme Court, “the language of the claim thus describes this most crucial element in the ‘new’ combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid.” We do not believe one can take from what the Supreme Court took here that the Supreme Court hates the functional language element because:

1. Firstly, it remains to be explored what the ‘most crucial element’ means?
2. Secondly, the current case is related to a new combination. It is not to be believed that the Supreme Court hints that the means-plus-function format can only be strictly associated with “an element in a claim for a combination” as worded in the statute of 35USC112(6). Rather, we would like to believe the Supreme Court remains open with respect to the functional language as long as there are no ‘overbroad and ambiguous problems.’ To the worst extent, what we can bear is that such ‘prejudicial’ viewpoint can only be applied to the situation that there already is an old combination, and what is sought to be patented is a new combination. Specifically if a single element claim or device is entirely new and is appropriately recited to clearly distinguish itself from the prior art and present a concrete imaginable practical image in the brain of one skilled in the art, can any one believe that it should be held invalid?
3. Third, if there is a prior old combination, a ‘similar but new’ combination should presumedly be recited in terms of its own physical characteristics or its arrangement in the new combination apparatus in order to be distinguished over the prior art. This is because if it is expressed in terms of ‘what it will do’ or mere functional language, how such claim can be distinctly distinguished thereover in order not to be ‘overbroad and ambiguous’?
4. Even in a new or crucial or general element in a claim for a combination, in order to be distinct and not to be ‘overbroad and ambiguous,’ it appears to be perfectly true that it needs not necessarily be expressed “in terms of its own physical characteristics or its arrangement in the new combination apparatus,” and it is soundly possible that such purposes can be achieved by using the functional language or the means-plus-function form. Can any one find where we are wrong here?

The US Congress enacted 35USC112(6) to overrule the Halliburton Court and was reported to adopt a compromise solution which is supported by the CAFC precedent in Greenberg v. Ethicon Endo-Surgery, Inc., holding “Congress permitted the use of purely functional language in claims, but restricted its scope to the structure disclosed in the specification and equivalents thereof.” It, however, is not precisely known to us what exact kind of ‘compromise’ the Congress has made. It is believed that our view, which should have been presented somehow heretofore although it has never been expressly expressed, is not wrong even we follow the CAFC’s opinion in Dawn Equip. Co. v. Kentucky Farms, Inc. that “the purpose of §112, ?6 was to provide clear parameters within which means-plus-function claims could be drawn and sensibly construed” since what we take is not in violation of the direct literal interpretation thereof. We are equally confident to stand before the more crucial further vindication that because the US Congress has “expressly provided against an overly-literal reading of §112, ?6 claims by allowing for equivalents, there would seem to be no justification for intrusion by the courts to duplicate or differ from the legislative solution” to functional claim language in the latter case. This is because that we cannot straightforwardly believe that the Congress has ‘expressly provided against an overly-literal reading of §112, ?6.’ It might be opined that CAFC inadvertently reached such a conclusion simply because §112, ?6 is enacted to overrule the Halliburton Court, which, nevertheless, might not be so concluded. Furthermore, ‘allowing for equivalents’ might be interpreted against ‘against an overly-literal reading.’ Accordingly before we can correctly establish what the ‘legislative solution’ exactly is, it is too early for any one including CAFC to define whether there is ‘justification for intrusion.’ It would thus appear that the CAFC has been tinkering with the ‘legislative solution’ of §112, ?6, and the public including most US attorneys and we is tinkering with what CAFC has rendered in its rulings till now. Nevertheless, the truth should be clear and easy or simple and never appears to be apparent only after being tinkered with. It thus seems we have here raised some serious big problems about §112, ?6. We cannot go further to discuss these issues or try to provide possible answers thereto since we are so poor in respect of time on the one hand and foreigner to the US on the other hand. US attorneys and judges are assumed to first try to solve all of these by themselves, right?

*What scope should the functional language-defined element cover?

Even in re Donaldson, CAFC admitted that “when statutory interpretation is at issue, the plain and unambiguous meaning of a statute prevails in the absence of clearly expressed legislative intent to the contrary.” We have not been convinced in any way that the plain and unambiguous meaning of §112, ?6 is limitative. If by in re Donaldson, if CAFC or most US attorneys have correctly illustrated §112, ?6 that functional claim language is limitative rather than outreaching, we do not think it should be limitative in the way being understood now. Specifically as what CAFC has expressed in re Donaldson, for the functional claim language, “the PTO may not disregard the structure disclosed in the specification corresponding to such language when rendering a patentability determination.” Although such holding appears to have distance from what we take, it needs not necessarily have been construed to be limitative as we are advised now. Since even according to what was held in Greenberg v. Ethicon Endo-Surgery, Inc., i.e. “Congress permitted the use of purely functional language in claims, but restricted its scope to the structure disclosed in the specification and equivalents thereof,” we can still properly broaden the coverage of §112, ?6 by suitably explaining the words “equivalents thereof,” which has been nearly foreclosed by the diligent advices of lots of US attorneys that all possible embodiments of the invention should be disclosed in the specification in order to enjoy the broadest protecting scope by which it seems to be meant that the stress of §112, ?6 statute should be placed on ‘the structure disclosed in the specification’ but by no means on ‘equivalents thereof’ which has thus only function similar to decoration or the like.

Specifically if §112, ?6 is not interpreted as limitative to be construed to advise that all possible embodiments of the claimed invention shall be preferably disclosed in the specification, ‘the structure disclosed in the specification’ and ‘equivalents thereof’ in the §112, ?6 statute shall have the equivalent meaning. More specifically ‘the structure disclosed in the specification’ and’ equivalents thereof’ shall have the plain and unambiguous meaning. In other words, the latter should be conferred with the function as it literally is or originally has.

In re Donaldson, according to CAFC, ‘even if the issue of anticipation under section 102 were before us, which it is not, the Commissioner could not have argued anticipation because he has failed to establish that the rigid hopper wall structure in Swift’s collector is an “equivalent” of the flexible wall, diaphragm-like hopper structure in Schuler’s claim 1 collector.’ If the functional claim language per se cannot patentably distinguish itself over the prior art, it should be rejected as failing to meet with the patentable requirements unless it has been further defined or limited either by functional or structural recitations. Specifically it is believed that trying to patentably distinguish the functional claim language from the prior art by the structural description in the specification will be more troublesome since it would be unclear to what extent the structure should be applied in order to confirm the exactitude of the scope the functional claim language should have. As a result, more disputes or controversies might be raised, which, as everyone knows, should be tried to avoid.

History appears to repeat here. The Halliburton Court was overruled by the enactment of §112, ?6 because it held the means-plus-function was overbroad and ambiguous. It has been held by CAFC for a certain period of time that upon using the purely functional language in claims, one should have prepared to restrict ‘its scope to the structure disclosed in the specification and equivalents thereof.’ Nevertheless, if there exists no problem of over-breadth or ambiguity, we do not know why such CAFC’s holding should not be abolished somehow by the Supreme Court or the Congress? According to the plain and unambiguous meaning of §112, ?6, a functional claim language is to be interpret to ‘cover’ rather than to be ‘restricted to’ the corresponding structures and equivalent thereof. Our such view is especially lovely or true in view of the most simplified example, means for fastening two elements together. In our opinions, any least sensible or rational person can easily demonstrate dozens of examples for such fastening means in any specific circumstance even he is not one skilled in the art. Accordingly requiring the applicant to list all possible embodiments in the specification is so cruel a thing, which appears to us no much meaning except to flow the service fee from the applicant to the patent attorney or to waste their time. Nevertheless, we by no means are advocates of single embodiment in the specification. On the contrary, we strongly agree that all of “key or important” embodiments of the “major” claimed feature should be described in details to the possible largest extent. But general or normal element or feature need not be indefatigably described since it is ‘easily’ conceivable to one skilled in the art, and should be construed to ‘cover’ or ‘include’ all or any “corresponding structure described in the specification and equivalents thereof.”

*What formula should the functional language-defined element have?

In the above, we have strenuously contested many aspects derived from the functional claim language. Nevertheless, it is very interesting to know or get somewhat acquainted with the question that in which circumstance a limitation is a functional claim language or a means-plus-function limitation is to be construed pursuant to §112, ?6. This is so big a problem that we cannot properly deal with it here. Perhaps, it requires a complete article similar to this one for better outlining the problem. We encourage US patent practitioners or scholars to so do in order to help the patent world to understand or settle the problem. According to Personalized Media Communications, L.L.C. v. Int’l Trade Comm’n, whether a claim limitation is to be interpreted under the regime set forth by §112, ?6 is a question of law so that the claim interpretation is subject to free review by the appellate court.

It has been held, e.g. in Data Line Corp. v. Micro Techs., Inc., ‘proper means-plus-function format sets forth a means for performing a specific function without reciting any specific structure for performing that function.’ Specifically, we might take that if one definitely desires an element to be construed according to §112, ?6, he should follow the format of “means for [gerund]….” In Cole v. Kimberly-Clark Corp., Judge Rich noted that “the alleged means-plus-function claim element must not recite a definite structure which performs the described function,” that “merely because a named element of a patent claim is followed by the word ‘means,’ however, does not automatically make that element a ‘means-plus-function’ element” and that “the converse is also true; merely because an element does not include the word ‘means’ does not automatically prevent that element from being construed as a means-plus-function element.” It never is an easy task to discern whether these three sentences made by Judge Rich do not conflict with one another. Specifically regardless of whatever clause succeeds, an element beginning with “perforation means” (as in Cole) has a great danger or desired possibility of not meeting the requirements of §112, ?6.

In Greenberg v. Ethicon Endo-Surgery, Inc., CAFC stated that subsequent cases clarified that the word “means” creates a presumption that §112, ?6 applies, while its absence creates a presumption that §112, ?6 does not apply. Nevertheless, in Mas-Hamilton Group v. Lagard, Inc., CAFC held that a claim limitation expressed solely in functional language that did not contain the word “means” was to be interpreted under §112, ?6. This is because CAFC found that the claimed structural element was described in terms of its function and not its mechanical structure so that if this element was not construed under §112, ?6, it would encompass any device that could perform the recited function.

Through these possibly subtle but contradictory rulings stated in these few cases, everyone should have got enough materials or information for him to be soundly amazed or puzzled as to how to judge, determine or recognize in what form a functional claim language should have, how one should follow, when one should make use thereof…

*How should we interpret 35USC112(6)?

We possibly have successfully caused the brain of the reader in a mess but should have also successfully explicitly disclosed or implicitly hinted how many issues §112, ?6 might have, how much complexity §112, ?6 might have, from where we might try to deal with §112, ?6…

In a word, although there already are many CAFC cases ruling that §112, ?6 should be interpreted to be limitative, we cannot so agree. Certainly every one must stick to the statutory law or the case law including the rulings rendered by CAFC before CAFC or the Supreme Court has a decisive decision in this respect. Nevertheless, we desire to urge CAFC or possibly the US Supreme Court to take this article as a reference or urge US patent practitioners to so urge the judges to review their views de novo if finding this article somehow persuasive that:

1. If the present opinions of CAFC were to continue to brew, §112, ?6 will hardly play any role in general patent applications in the future.
2. §112, ?6 should not be spayed by concluding that it is limitative rather than broadening without a kind of enough reasoning.
3. The plain and unambiguous interpretation of §112, ?6 appears to soundly support us to repeatedly reiterate our above assertion.
4. It is unnecessary for an element to be construed under §112, ?6 only when it contains the word “means” or begins with the term “means for.”
5. While it is necessary for the functional claim element to be defined or recited in functional statements, it is unnecessary that it is purely functionally defined.
6. Although there contains some structural limitations in the functional claim element, it will not harm or eradicate the applicability of construction under §112, ?6.
7. The corresponding structures in the specification are exemplary rather than exhaustive.
8. Although more and more “key or important” embodiments, especially those which are never known to the world till now, of the “major” claimed feature can help broaden the protecting scope of the functional claim language, said protecting scope shall never be limited to those corresponding structures in the specification without imparting somewhat significant meaning to the statutory term “equivalents thereof.”
9. For a general or normal element or feature, it need not be indefatigably described with many embodiments since it is ‘easily’ conceivable to one skilled in the art that those possible “many embodiments” should be incidentally ‘covered’ or ‘included’ by the functional claim language without any difficulties.
10. Only when understood in the above manner, §112, ?6 will find its way or its new life again.

The most solemn issue of this article might be if everyone is fond of the functional claim language, there does not exist a clear standard to determine the exact scope thereof. Nevertheless, this should not be a question since there are many indefinite concepts in the world, e.g. non-obviousness or doctrine of equivalents. Even in the situation hybridizing the functional recitations and structural recitations, the part concerning the functional recitations can still be separately treated or interpreted by following the above principles.

1. The words ‘equivalents thereof’ in 35USC112(6) should have a positive and active role by which we mean they should not be merely decorative.
2. The corresponding structures disclosed in the specification are merely illustrative rather than exhaustive to be legitimately ‘covered’ by §112, ?6.
3. If the functional claim language cannot patentably distinguish itself from the prior art, it should be further defined or limited to be distinguished thereover. We are of the opinion that it appears not to be a good idea to try to have or to rely on a patentable distinction by resorting to the concrete structure disclosed in the specification rather than a patentable feature in the claim per se.
4. The functional claim language can be further added with necessary structure in order to be distinguishing over the prior art.
5. It is possible that more and more “key or important” embodiments (especially those which are never known to the world till now) of the “major” claimed feature should be able to help broaden the protecting scope of the functional claim language. But general or normal element or feature need not be indefatigably described with many embodiments since it is ‘easily’ conceivable to one skilled in the art that those “many embodiments” should be incidentally ‘covered’ or ‘included’ by the functional claim language.
6. It is unimportant for the functional claim language to follow a specific form or format. Specifically any element which is defined by the functional language can and should be construed according to §112, ?6, which is not limitative but exemplarily rather than exhaustively include the corresponding structure described in the specification. The more the exemplary structures in the specification has, the imaginary and real protecting scope the element involved in can be construed to cover. The more normal or popular the functional claim element is, the less necessity the applicant is required to describe said element in detail.
7. It is legitimate for an applicant to define or include structural limitation in a means-plus-function element since it will not harm the property of the element, which is defined partly or wholly by functional language in order to distinguish itself over the prior art element.
8. The functional claim language can be applied to the integral or entire claim by which we mean it is appropriate for a claim to include only a single element defined by the functional claim language as long as it can patentably distinguish over the prior art.
9. Only we stick to so hold for §112, ?6, can it resuscitate to its should-be life.