¶ 7.34.11 Modifier of "Means" Lacks Function
Claim [1] uses the word "means" or a generic placeholder as a substitute for "means" and is preceded by the word(s) "[2]." It is unclear whether these words convey function or structure. A limitation construed under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph must not recite the structure for performing the function. Since no clear function is specified by the word(s) preceding "means," it is impossible to determine the equivalents of the element, as required by 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. See Ex parte Klumb, 159 USPQ 694 (Bd. App. 1967).
Examiner Note:
1. This paragraph should be used when words precede the term "means" or a substitute for "means" and it cannot be determined from the specification whether those words connote function or structure. Therefore, it is unclear whether the presumption is rebutted that 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph is being invoked. If the claim element recites structure for performing the function, 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph will not be invoked. It is necessary for the words which precede "means" to convey a function to be performed and not recite structure to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
2. This form paragraph must be preceded by form paragraph 7.34.01.