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PTAB Requires Identification of Structure for Function for Means-Plus-Function Terms, PTAB Litigation Blog

August 2017

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In a decision dated August 17, 2017, the Board denied institution of Kingston Technology Company, Inc.’s petition requesting inter partes review of claims 1-3, 6-8, 11-15, 23-28, and 36-39 of U.S. Patent No. 6,088,802 ("the ‘802 patent") owned by SPEX Technologies, Inc. Kingston Technology Company, Inc. v. SPEX Technologies, Inc., IPR2017-00824 (Paper 8) (PTAB August 17, 2017). Specifically, the Board found that Kingston had (1) not met its burden under 37 C.F.R. § 42.104(b)(3) of identifying specific portions of the patent specification that describe the structure corresponding to the claimed functions of certain means-plus-function claim terms and (2) failed to perform any structural comparison demonstrating that the structure in the patent specification was the same or equivalent to structures in the prior art. The Board concluded that these failures were fatal to Kingston’s petition with respect to claims 1-3, 6-8, 11-15, 23-28, and 36, 37 and 39.

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