FINDING HISTORICAL MEANING IN FUNCTIONAL CLAIM LANGUAGE THROUGH ANALYTICAL AND SYNTHETIC PROPOSITION CATEGORIZATION

摘要

Means-plus-function claiming has had a turbulent history. Since the Patent Act of 1952, the view the court has taken on functional claiming has vacillated between two very different poles. Striking a balance between these two positions seems like the best course to take to invigorate patent drafters and give investors a better sense of certainty. I believe a renewed interest in the reevaluation of the role of central versus peripheral claiming, as well as the presumption of invocation of § 112(f) protection, will encourage progress in a much needed area of patent law. Given the focus on subject matter eligibility, means-plus-function could be the next major battleground about the scope of patent protection in our system. As such, the suggested changes could begin the process of fine-tuning means-plus-function claiming in a way the benefits not only the interpretative process, but also inventors and patent drafters wishing to use means-plus-function claims.