Flo Healthcare Solutions, LLC v. Kappos

To rebut the presumption that a limitation is not a means-plus-function limitation, the patentee must show that the limitation is essentially “devoid of anything that can be construed as structure.”

Opinion (Plager): Flo Healthcare Solutions sued Rioux Vision, claiming infringement of its ‘178 patent. Rioux initiated an inter partes reexamination, which resulted in the rejection of several of the patent’s claims. Flo appealed, arguing that while the Board of Patent Appeals correctly determined that the patent’s limitation, requiring “a height adjustment mechanism,” invoked 35 U.S.C. § 112 ¶ 6, it erred when it held the limitation did not include an additional structure, “a length-adjustable vertical beam,” which would have placed the limitation beyond the prior art considered by the examiner. If the drafter does not use the word “means” in the limitation, a rebuttable presumption that he did not intend to invoke § 112 ¶ 6 arises. Using a dictionary, the Court determined that while the word “mechanism” did not convey structure, the word “adjustment” did. The term “height adjustment mechanism,” therefore, describes a device named for its function, which indicates structure. The court noted that although the term is used 24 times in the patent, it is never used in a purely functional manner. Because the limitation was not sufficiently devoid of structure, Flo failed to rebut the presumption that § 112 ¶ 6 did not apply. Accordingly, the court construed the claim without the benefit of the special rules for means-plus-function limitations, and determined it did not include “a length-adjustable vertical beam.” Therefore, the limitation was covered by the prior art, and the Board was AFFIRMED.