“BAD FAITH” LITIGATION STANDARD HAS OBJECTIVE AND SUBJECTIVE COMPONENTS

800 Adept, Inc., v. Murex Securities, Ltd., [2007-1272, -1356] (August 29, 2008) [PLAGER, Gajarsa, Dyk] The Federal Circuit vacated the trial court’s damages award, the permanent injunction, and the judgment with respect to willfulness, enhanced damages, and attorney fees to Adept; affirmed invalidity of Targus’ patents except for two claims which were remanded for a new trial.
DISCUSSION: This patent case involves technology for routing “1-800” telephone calls to an appropriate service location, e.g., the service provider closest to the customer who placed the call.
The Federal Circuit found that the plain language of the claims makes clear that the “assigning” step requires that “a telephone number of a service location” be assigned to each potential caller. Nothing in the claims suggests that storing an algorithm that will be used to determine the telephone number of the correct service location during a telephone call constitutes an assignment of a service location telephone number to a potential caller before a telephone call is placed. The Federal Circuit concluded that based on consideration of the claims, the written description, and the remainder of the intrinsic evidence, we the trial court was correct in the first instance when it construed the “assigning” language to refer to “a designation made prior to the telephone call of the first parties.”
Regarding Adept’s tortuous interference claims, the Federal Circuit said that “State tort claims against a patent holder, including tortious interference claims, based on enforcing a patent in the marketplace, are “preempted” by federal patent laws, unless the claimant can show that the patent holder acted in “bad faith” in the publication or enforcement of its patent.” The Federal Circuit noted that the Supreme Court said long ago, “Patents would be of little value if infringers of them could not be notified of the consequences of infringement, or proceeded against in the courts. Such action, considered by itself, cannot be said to be illegal.” The Federal Circuit instructed that the “bad faith” standard has objective and subjective components. The objective component requires a showing that the infringement allegations are “objectively baseless.” The subjective component relates to a showing that the patentee in enforcing the patent demonstrated subjective bad faith. The Federal Circuit cautioned that Courts “must ‘resist the temptation to engage in post hoc reasoning by concluding’ that an ultimately unsuccessful ‘action must have been unreasonable or without foundation.’”

DISCLAIMER ONLY APPLIES WHERE THE EXACT SAME LANGUAGE IS USED

Lexion Medical, LLC, v. Northgate Technologies, Inc., [2007-1420, -1440] (August 28, 2008) [SCHALL, Michel, Rader] The Federal Circuit affirm-in-part, vacate-in-part, and remanded that Claims 11 and 12 of U.S. Patent No. 5,411,474 are valid and were infringed by Northgate, and that the asserted claims of U.S. Patent No. 6,068,609 are invalid for obviousness.
DISCUSSION: Regarding the ‘474, the Federal Circuit held that prosecution disclaimer did not apply, noting that the alleged disclaimer corresponded precisely with the limitations expressly recited in those particular claims, and was clearly in response to a rejection of those particular claims, any disclaimer must accordingly be limited to those claims, under our approach set forth in Golight. The parties disputed whether predetermined temperature in claim 11(e) covered a range or a single temperature. The Federal Circuit noted that the word “range” appears elsewhere in the language of claim 11 but is not used in limitation 11(e) to describe the “predetermined temperature” suggests that the applicants affirmatively employed the word “range” where that meaning was intended, but specifically declined to do so in connection with the “predetermined temperature” limitation of claim 11(e). As a result the Federal Circuit vacated and remanded the issue of infringement of the ‘474 patent.

Definiteness Does Require the Ability to Determine Infringement in Advance; Merely the Ability to Determine What the Claim Means

Star Scientific, Inc., v. R.J. Reynolds Tobacco Company [2007-1448] (August 25, 2008) [MICHEL, Schall, Dyk] The Federal Circuit reversed judgment that Star's U.S. Patent Nos. 6,202,649 and 6,425,401 were unenforceable due to inequitable conduct; and granting summary judgment of invalidity of all asserted claims due to indefiniteness.
DISCUSSION: The Federal Circuit reviews the district court's inequitable conduct determination under a two-tier standard; the underlying factual determinations are reviewed for clear error, the ultimate decision as to inequitable conduct is reviewed for an abuse of discretion. With respect to the '649 patent the Federal Circuit held that the district court clearly erred in finding that plaintiff had an intent to deceive the PTO, and with respect to the '401 patent, the Federal Circuit held that the district court clearly erred in finding that the information contained in the Burton letter and Curran data was material. The Federal Circuit said that the need to strictly enforce the burden of proof and elevated standard of proof in the inequitable conduct context is paramount because the penalty for inequitable conduct is so severe, the loss of the entire patent even where every claim clearly meets every requirement of patentability. The Federal Circuit said that just as it is inequitable to permit a patentee who obtained his patent through deliberate misrepresentations or omissions of material information to enforce the patent against others, it is also inequitable to strike down an entire patent where the patentee only committed minor missteps or acted with minimal culpability or in good faith. As a result, courts must ensure that an accused infringer asserting inequitable conduct has met his burden on materiality and deceptive intent with clear and convincing evidence before exercising its discretion on whether to render a patent unenforceable.
With regard to the deceptive intent prong, the Federal Circuit has emphasized that "materiality does not presume intent, which is a separate and essential component of inequitable conduct." Because direct evidence of deceptive intent is rarely available, intent can be inferred from indirect and circumstantial evidence, but it must still be clear and convincing, and inferences drawn from lesser evidence cannot satisfy the deceptive intent requirement.
With regard to the materiality prong, the Federal Circuit has held that "information is material when a reasonable examiner would consider it important in deciding whether to allow the application to issue as a patent." But information is not material if it is cumulative of other information already disclosed to the PTO. If a threshold level of intent to deceive or materiality is not established by clear and convincing evidence, the district court does not have any discretion to exercise and cannot hold the patent unenforceable regardless of the relative equities or how it might balance them. The district court held that the term "anaerobic condition" is indefinite and thus, since it appears in every asserted independent claim, held that all asserted claims are invalid as indefinite. The Federal Circuit noted that "[o]nly claims not amenable to construction or insolubly ambiguous are indefinite." A claim term is not indefinite just because "it poses a difficult issue of claim construction" the standard is whether "the claims [are] amenable to construction, however difficult that task may be." The Federal Circuit said that by finding claims indefinite only if reasonable efforts at claim construction prove futile, we accord respect to the statutory presumption of patent validity . . . ." The Federal Circuit held that from the claim term "anaerobic condition" and the intrinsic record, a skilled artisan would discern what the term delineates, and further found that this is further supported by statements to that effect in the patents' specifications.
The Federal Circuit noted that when a word of degree is used the patent's specification must provide some standard for measuring that degree to be definite. The Federal Circuit said that "anaerobic condition" is in effect a term of degree because its bounds depend on the degree of oxygen deficiency, however the Federal Circuit found that the intrinsic record provides a standard for measuring that degree and assessing the bounds of "anaerobic condition." In fact, the Federal Circuited noted, some of the claims explicitly refer to the standard. According to the Federal Circuit, the error the district court made was its misunderstanding that claim definiteness required that a potential infringer be able to determine if a process infringes before practicing the claimed process. "The test for indefiniteness does not depend on a potential infringer's ability to ascertain the nature of its own accused product to determine infringement, but instead on whether the claim delineates to a skilled artisan the bounds of the invention."

The Risk of Functional Claiming is That the Functional Limitation may be an Inherent Characteristic of the Prior art

Leggett & Platt, Inc. v. Vutek, Inc., [2007-1515] (August 21, 2008) [PROST, Bryson, Archer] The Federal Circuit affirmed summary judgment of invalidity of L&P’s U.S. Patent No. 6,755,518 (the “’518 patent”).
DISCUSSION: Three questions of claim construction were presented on appeal: (1) cold UV, (2) freeze dots of the jetted ink, and (3) substantially cure. Based on these claim constructions the district court found the asserted claims either anticipated by, or obvious from, defendant’s patents. the district court construed the term “substantially cure” to mean “cured to a great extent or almost completely cured.” The Federal Circuit noted that the district court construed the term “substantially cure” to mean “cured to a great extent or almost completely cured.” Thus, the relevant portion of claim 1 simply requires a cold UV source (e.g., LEDs) that is “effective to impinge sufficient UV light on the ink” to cure the ink to a great extent or almost completely cure it. The Federal Circuit noted that because the claim is written with functional rather than structural language—it requires the cold UV assembly to be “effective to” substantially cure rather than requiring ink to be substantially cured—the claim limitation will be anticipated if the LEDs disclosed in the prior art are able to cure the ink to a great extent. As the Federal Circuit explained in In re Schreiber, the risk of functional claiming is that the functional limitation may be an inherent characteristic of the prior art.
The Federal Circuit noted that the prior art showed that 75-80% curing, which the Federal Circuit said a reasonable mind might well find to be “substantially cured”, however under the strict standard of summary judgment the Federal Circuit could not say, as a matter of law, that 75-80% cured is “cured to a great extent or almost completely cured.” The Federal Circuit said that it could, however, conclude as a matter of law that the prior art inherently discloses LEDs that are “effective to impinge sufficient UV light on the ink to” cure the ink to a great extent. The Federal Circuit said that under the principles of inherency, if the prior art necessarily functions in accordance with, or includes, the claims limitations, it anticipates. In other words, the prior art will anticipate by inherency if its LEDs necessarily are “effective to impinge sufficient UV light on the ink to substantially cure the ink.” Thus, while the prior art may not expressly disclose that the LEDs cure the ink to a great extent, it inherently discloses LEDs that are “effective to” do so.
The Federal Circuit rejected plaintiff’s argument that the prior art could not cure the ink as ignoring the difference between substantial cure and full cure is not insubstantial. The Federal Circuit also rejected plaintiff’s argument that some examples did not anticipate, as relying on the erroneous assumption that the disclosure of multiple examples renders one example less anticipatory.

No Declaratory Judgment Jurisdiction if There is No Useful Remedy

Merck & Co., Inc., v. Apotex, Inc., [2008-1133] (August 21, 2008) [MAYER, LINN, and ILLSTON] NON-PRECEDENTIAL The Federal Circuit affirmed dismissal of Apotex’s counterclaims for declaratory judgment against appellee Merck & Co., Inc. because the current dispute does not “‘admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts,’”
DISCUSSION: As part of its maneuverings under the Hatch-Waxman Act, when Apotex filed an ANDA citing three Merck patents on the glaucoma medications Trusopt® and Cosopt®, and Merck filed suit on only one of the patents. Apotex counterclaimed with respect to the two unasserted patents, but the district court dismissed the counterclaim for lack of a justiciable controversy. The Federal Circuited noted that the proper standard for determining whether a declaratory judgment action satisfies the Article III case or controversy requirement is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Noting that to defeat another applicant’s period of exclusivity Apotex needed a declaration of invalidity before August 14, 2008, just seven days after the oral arguments, the Federal Circuit concluded that they could not provide meaningful relief and affirmed the dismissal.

Experimental Use Cannot Negate Public Use If the Invention has been Reduced to Practice before the Experimental Use

ASTRAZENECA AB, v. APOTEX CORP., APOTEX, INC., [2007-1414, -1416, -1458, -1459] (August 20, 2008) [BRYSON, Lourie,GAJARSA] The Federal Circuit affirmed judgments of infringement against Apotex and Impax in litigation involving a number of generic drug manufacturers for infringement of Astra’s patents covering formulations of omeprazole, the active ingredient in Prilosec, a drug designed to treat acid-related gastrointestinal disorders.
DISCUSSION: Impax argumed that the district court lost jurisdiction over the case after the patents expired. The district court rejected that argument because the FDA had granted Astra an additional six-month period of market exclusivity after Astra had agreed to the FDA’s request that it perform pediatric testing of its product. The Federal Circuit found that the district court correctly interpreted section 271(e)(4)(A) to provide a post-expiration remedy for infringement under section 271(e)(2).
Impax challenged the district court’s finding that Impax’s formulation met the “inert subcoating” limitation of both patents. The Federal Circuit noted that Astra did not need to identify the process by which the infringing subcoating was produced; it was sufficient for it to show the presence of the claimed structure. The Federal Circuit found sufficient evidence to support the existence of the required inert subcoating.
Regarding Impax’s challege to the validity, before the critical date Astra commissioned four large clinical studies to determine the safety and efficacy of its formulation in order to obtain FDA approval. The district court ruled that the studies constituted experimental uses, not public uses, of the claimed invention. The district court further ruled that the patented formulation was not ready for patenting until after the studies were completed. The Federal Circuit agreed that experimental use cannot negate a public use when it is shown that the invention was reduced to practice before the experimental use. However, the Federal Circuit said it could affirm affirm the district court’s conclusion that the claims were not invalid under section 102(b) based on the court’s factual determination that the claimed formulation was not ready for patenting until after the clinical studies were completed. The Federal Circuit said that the district court found that the claimed formulation was not reduced to practice before the clinical trials were completed, and upheld that finding. The Federal Circuit noted that In Pfaff, the Supreme Court described two ways for a party to show that an invention was ready for patenting before the critical date of section 102(b): “by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” To demonstrate reduction to practice, the Federal Circuit said that a party must prove that the inventor (1) constructed an embodiment or performed a process that met all the limitations and (2) determined that the invention would work for its intended purpose. The Federal Circuit said that testing is required to demonstrate reduction to practice in some instances because without such testing there cannot be sufficient certainty that the invention will work for its intended purpose. The Federal Circuit said that the district court found that the Phase III formulation was not reduced to practice before the trials because the evidence showed that at that time the inventors believed only that the formulation “might solve the twin problems of in vivo stability and long-term storage” and the Federal Circuit agreed.
Turning to Apotex’s appeal, Appotex argued that its manufacturing process merely practices the prior art. However the Federal Circuit responded that it is well established that “practicing the prior art” is not a defense to infringement. Based on the district court’s thorough analysis of the prior art and the nature of the problem, the Federal Circuit found no error in the court’s findings of fact and conclusions of law on the question of obviousness.

Beta Testers Who Paid Create an On Sale Bar

CYGNUS TELECOMMUNICATIONS TECHNOLOGY, LLC, v. TELESYS COMMUNICATIONS, LLC, [2007-1328, -1329, -1330, -1331, -1332, -1333, -1354, -1361] (August 19, 2008) [BRYSON, Newman, Pogue] The Federal Circuit affirmed summary judgment that U.S. patent numbers 5,883,964 and 6,035,027 are invalid under the on-sale bar of 35 U.S.C. § 102(b); summary judgment of non-infringement as to defendant AT&T; and dismissal of Cygnus’s trade secret misappropriation claims.
DISCUSSION: The district court ruled, on summary judgment, that the ’964 and ’027 patents are invalid under the on-sale bar of 35 U.S.C. § 102(b). The district court’s ruling was based on Alleman’s sale of the 386 system to paying users before the critical date for both patents, April 24, 1991. The district court determined that the 386 system had been reduced to practice based on Mr. Alleman’s sworn declaration to the PTO that the invention had been reduced to practice before June 27, 1990. The Federal Circuit began with a statement of the general rule A patent is invalid under the section 102(b) on-sale bar if, prior to the critical date, the invention was ready for patenting and was the subject of a commercial sale or offer for sale.
The Federal Circuit approved the district court’s ruling that the question whether the system would work on a commercial scale was distinct from whether the system embodied the claims in the two patents at issue. Because the system embodied the claims, sales relating to its use can constitute an invalidating commercial sale, regardless of the state of development of a commercial system. Regarding the “beta testers” the Federal Circuit said that the district court properly concluded that in light of the undisputed evidence that they paid to use the system, there was a sale of the service. The Federal Circuit noted that there did not need to be a profit in order for there to be a sale within the meaning of section 102(b). The Federal Circuit also affirmed that “experimental use cannot occur after a reduction to practice.”

PTO's Interpretation of the Patent Statute Give Deference

COOPER TECHNOLOGIES COMPANY v. Dudas, [2008-1130] (August 19, 2008) [LINN, Michel, Lourie] The Federal Circuit affirmed the USPTO’s interpretation that “original application” as used in the reexamination statute includes utility, plant and design applications, including first filed applications, continuations, divisionals, continuations-in-part, continued prosecution applications and the national stage phase of international applications.
DISCUSSION: The AIPA created the inter partes reexamination procedure to allow third parties to have an expanded role in the reexamination of issued patents. The inter partes reexamination procedure is available for “any patent that issues from an original application filed in the United States on or after” November 29, 1999. Thomas & Betts Corporation requested inter partes reexamination of U.S. Patent No. 6,984,791 owned by Cooper Technologies Company. The ’791 patent issued from an application filed on April 14, 2003, but which claims priority from applications filed July 22, 2002, March 20, 1997, June 20, 1994, and ultimately March 10, 1993. Cooper filed a petition with the Patent Office seeking to terminate the inter partes proceeding, arguing that the ’791 patent did not issue from an original application filed after November 29, 1999. The PTO determined that the ’683 application is an “original application” for purposes of the AIPA, even though it is a continuation of and claims priority from an application filed prior to November 29, 1999.
The Federal Circuit said that under the familiar two-step Chevron analysis, it first determines whether Congress has directly spoken to the precise question at issue. If so, then that intention is the law and must be given effect; if not, the court must determine whether the agency’s interpretation is based on a permissible construction of the statutory language at issue. After examining the use of “original application” in the statute, in the MPEP, and in the Federal Circuit’s precedent, the Federal Circuit concluded that that Congress had not “directly spoken to the precise question at issue” – namely the meaning of “original application”. The Federal Circuit turned to the second part of the Chevron analysis and concluded that the Patent Office’s interpretation of “original application” was permissible.

Plain and Unambiguous Claim Language Controls Claim Construction

DSW, Inc. v. SHOE PAVILION, INC., [2008-1085] (August 19, 2008) [MAYER, Schall, Linn] The Federal Circuit vacated and remanded summary summary judgment of non-infringement of U.S. Patent No. 6,948,622 and summary judgment of no liability for damages for past infringement of U.S. Patent No. D 495,172 and the ’622 patent.
DISCUSSION: The Federal Circuit said that infringement occurs when a properly construed claim of an issued patent covers an accused device. The Federal Circuit held that the district court erroneously imported a “track and roller” limitation directly recited in claims 1-3 into the generally phrased “vertically disposed, horizontally movably positionable stack divider” language of claims 4-6. The Federal Circuit said that absent contravening evidence from the specification or prosecution history, plain and unambiguous claim language controls the construction analysis. The Federal Circuit found no reason in the prosecution history to limit the claims. The Federal Circuit specifically noted while the preferred embodiment included the “track and roller” other embodiments did not. The Federal Circuit said that “when claim language is broader than the preferred embodiment, it is well-settled that claims are not to be confined to that embodiment.”
On the issue of damages, the district court held that plaintiff was not entitled to damages for the period after receiving actual notice of the patent, while defendant was winding down its infringement. The Federal Circuit held that this was error. The Federal Circuit noted that precedent flatly states that a patentee may indeed recover damages for infringement that continues after actual notice is provided. The Federal Circuit said that “without a doubt, the law offers an infringer no exception to liability for the time it takes to terminate infringing activities, no matter how expeditious and reasonable its efforts.” The Federal Circuit held that the trial court erred in concluding that defendant’s reasonable steps and good faith efforts to bring its infringing activity to a timely end equated to an immediate cessation, and that if the patents at issue are valid, damages are owed for the 6-7 months of continued infringement while defendant phased out its use of the displays in its stores.

Licensor of Open-Source License Agreement Can Enfroce Copyright in Licensed Property

Jacobsen v. Katzer, [2008-1001] (August 13, 2008) [HOCHBERG, Michel, Prost] The Federal Circuit reversed the denial of a preliminary injunction against copyright infringement, holding that an open source license agreement is enforceable.
DISCUSSION: Katzer downloaded Jacobsen’s copyrighted files which were available pursuant to an open source license, and used these files in violation of the open-source license agreement. The district court held that denfendant’s may have breached the contract, but they did not infringe plaintiff’s copyright.
The Federal Circuit observed that open source licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. The Federal Circuit said that open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago.
Defendants acknowledged copying, but argued that it could not constitute infringement because they had a license to use the material. The Federal Circuit said that the heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. The Federal Circuit noted that the Artistic License stated on its face that the document creates conditions, and that agreement used the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted “provided that” the conditions are met. The Federal Circuit found that The conditions set forth in the Artistic License are vital to enable the copyright holder to retain the ability to benefit from the work of downstream users. The Federal Circuit further found that copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The Federal Circuit said that he choice to exact consideration in the form of compliance with the open source requirements rather than as a dollar-denominated fee, is entitled to no less legal recognition. In fact, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. The Federal Circuit vacated and remanded the case for the district court to reconsider the denial of the preliminary injunction.

Hatch-Waxman Safe Harbor Only Applies to Producsts that the FDA Regulates

Proveris Scientific Corporation v. Innovasystems, Inc., [2007-1428] (August 5, 2008) [SCHALL, Bryson, Gajarsa] The Federal Circuit JMOL in favor of Proveris on infringement of United States Patent No. 6,785,400 and on Innova’s affirmative defenses.
DISCUSSION: Proveris sued Innova alleging infringement of the ’400 patent. Innova attempted to invoke the safe harbor provision of the Hatch-Waxman Act, which provides that it is not an act of infringement to us a patented invention “solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products. Noting that the Hatch-Waxman Act was intended to eliminate the market distortions caused by FDA approval process, the Federal Circuit concluded that because the accused device is not subject to FDA premarket approval, and therefore faces no regulatory barriers to market entry upon patent expiration, Innova is not a party who could be said to be adversely affected by the second kind of distortion -- approval delays to entering the market upon patent expiration. The Federal Circuit also noted that Proveris was not a party who was affected by the first kind of distortion – approval delays in the initial entry into the mark. The Federal Circuit found this symmetry followed the Supreme Court’s instruction regarding a “perfect fit” between products subject to the extensions and safe harbors of the statute. The Federal Circuit said:

Because Proveris’s patented product is not subject to a required FDCA approval process, it is not eligible for the benefit of the patent term extension afforded by 35 U.S.C. §156(f). At the same time, because Innova’s OSA device also is not subject to a required FDCA approval process, it does not need the safe harbor protection afforded by 35 U.S.C. § 271(e)(1).

The Federal Circuit affirmed the other decisions of the district court regarding the admission of evidence and expert testimony.

Aspex Eyewear, Inc., v. Altair Eyewear, Inc., [2007-1380, -1407] (August 1, 2008) [MICHEL, Linn, Zagel] NON-PRECEDENTIAL The Federal Circuit reversed summary judgment of non-infringement of U.S. Patent No. 5,737,054, finding an error in the court’s construction of the term “frame”, but affirmed summary judgment of non-infringement as to U.S. Patent Nos. 6,012,811 and 6,092,896, and remanded as to infringement of the ‘054 and standing to sue issues
DISCUSSION: The Federal Circuit said that it determines the ordinary and customary meaning of undefined claim terms as understood by a person of ordinary skill in the art at the time of the invention, using the methodology in Phillips v. AWH Corp. While the district court construed “frame” as requiring a bridge portion and rims, the Federal Circuit found nothing in the claim language limits a “frame” to only one with rims. The Federal Circuit further noted that the written description never mentions or describes rims, although rims are illustrated in the figures, and the written description states that the precise configuration of the components of the glasses could be modified and still be within the scope of the claims. The Federal Circuit concluded that “frame” as used in the claims did not require rims.
The Federal Circuit then turned to the 35 USC §112, ¶6. The district court held that “two retaining mechanisms for supporting a pair of lenses, and defining a frontal plane” was a means-plus-function limitation under Section 112 ¶ 6. The Federal Circuit observed that when a claim limitation does not recite a “means,” there is a rebuttable presumption that it is not a means-plus-function limitation. The Federal Circuit said that the presumption can be overcome, if the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function. To help determine whether a claim term recites sufficient structure, the Federal Circuit considers whether it has an understood meaning in the art. The Federal Circuit has also held that a claim term need not recite specific structure; if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a broad class of structures and even if the term identifies the structures by their function. The Federal Circuit found no indication in the record that “retaining mechanism” connotes definite structure to a person of ordinary skill in the art. Thus the Federal Circuit affirmed that “retaining mechanism” is a means-plus-function limitation. Because the only structure disclosed in the specification for performing the recited functions (i.e., supporting the lenses and defining a frontal plane) were rims, the Federal Circuit agreed with the district court that this language required rims.