In Claim Construction: Module Means Means

Why do you keep running away from the basis for invalidity (indefiniteness) and the standard (Nautilus) by which indefiniteness should be evaluated?

This question evidences your thinking is backward. Okay so you understand step 1 is construe the claims, and step 2 is start testing that scope against the requirements of law (including 112b). I’m not running away from 112b, I haven't gotten to it yet. I’m still on step 1. Construe the claims for me. When you invoke 112f, the claim construction requires that I do some analysis that BEGINS WITH the structure in the specification – that's explicitly what 112f says. What is the structure in the specification for performing the function?

If so, the acts for "a user identification module configured to control access of said one or more software application packages" are: (i) identifying a user, (ii) determining an access control associated with one or more software application packages based upon the identified user, (iii) permitting or denying access to the one or more software applications based upon the determined access control.

Does the specification say that or did you just make that up? (if so, where?) Because the specification actually says (ii) is done at the server, while the user identification module is at the client. So it sounds like you want to ignore his invention and substitute your own.

There are dozens/hundreds of ways the various acts of the algorithm I identified above could be implemented. However, that does not make it indefinite.

That is the precise reason it IS indefinite. That's the whole reason the statutory construction language in 112f exists. You simply cannot do what you think you can do here. It's well settled you can't say "Any software that achieves this function is definite."

Here's the court in Aristocrat back in 2008:

Whether the disclosure would enable one of ordinary skill in the art to make and use the invention is not at issue here. Instead, the pertinent question in this case is whether Aristocrat's patent discloses structure that is used to perform the claimed function. Enablement of a device requires only the disclosure of sufficient information so that a person of ordinary skill in the art could make and use the device. A section 112 paragraph 6 disclosure, however, serves the very different purpose of limiting the scope of the claim to the particular structure disclosed, together with equivalents. The difference between the two is made clear by an exchange at oral argument. In response to a question from the court, Aristocrat's counsel contended that, in light of the breadth of the disclosure in the specification, any microprocessor, regardless of how it was programmed, would infringe claim 1 if it performed the claimed functions recited in the means-plus-function limitations of that claim. That response reveals that Aristocrat is in essence arguing for pure functional claiming as long as the function is performed by a general purpose computer. This court's cases flatly reject that position.

That's a nice example of circular reasoning that doesn't invoke the standard set forth by Nautilus.

You understand reference isn't circular, right? The statute is very clear. When you have means for [function] in the claim, you pull out the term means for function and replace it with the structure in the specification. All 112f does is let you write complicated structures in the spec so that they can be referenced in the claim. Regardless, again we’re still at the "construe the claims" stage so we’re not comparing the scope to nautilus yet, we don't even have a scope.

And to answer your question as to "how does one of skill in the art know which one it is": It doesn't matter. It's a known operations and how it happens doesn't impact the invention, as a whole.

Of course it matters. We can make it part of larger claim if your mind needs that somehow. So we’ve got Claim 1 and it's got ten elements. And we have a defendant, and he admits his invention does nine of the elements. But the last element is "means for firing a projectile." And the defendant uses a bow for firing a projectile in his system. Now 112f explicitly says that means plus term shall be construed to cover the structure in the specification + its equivalents. Do you not understand that if the specification nominates a bow as the means the defendant infringes, and if the specification nominates a gun the defendant does not infringe? And if the specification doesn't nominate anything we can't tell whether the defendant infringes, because we don't know whether the claim means a bow+equivalents or a gun+equivalents?

The underlying goal of this case law is to do what you just described –limit the scope of the invention to some small subset of the possible embodiments. To the infringers of the world, the next best thing to having an invalid patent is to have a patent that is easily infringed. By requiring the scope of these terms (intentionally written to broadly cover known elements) to be limited to a small subset of possible embodiments, you’ve created loopholes that effectively make the patent exceptionally easy to design around.

So because the result IN THIS CASE resulted in the claims being invalidated you think there's some sort of intrinsic bias? What if the defendant had prior art that anticipated the broader scope and the patentee was arguing for a means-plus construction to avoid the prior art, would construing it in means plus be okay then?

In the real world, whether it is a bow, an air gun, or a compound bow doesn't matter to the inventor – he (or she or they) just wants the projectile fired. There could be dozens (if not hundreds) of ways by which a projectile could be fired.

haha tell you what, you make a system that utilizes bows and I’ll make a system that utilizes guns and we’ll give them to respective armies and see if they think it's irrelevant what means are used to fire the projectiles. What if the other limitations in the claim are tracking sensors and they aren't capable of tracking bullets like they can track arrows? Do you think it matters to the inventor then? Do you think it might matter to the public because they don't know whether they can research better tracking systems because they don't know if they can monetize them?

One could possibly get around all of this by having exceptionally detailed specifications that list all possible ways by which some so-called "means for [function]" could be performed.

Just to be clear, if all of the ways in which a function could be performed were truly equivalent, the only thing the specification would have to do is disclose one single way, because 112f on its face says that the scope is drawn to the structure in the specification PLUS ITS EQUIVALENTS. So the additional cost would be nothing. That's why when I said that I doubt the structure of this algorithm has been static for "ages" it's really because both you and I know that not every identification and access control system is equivalent. The reason this guy got this patent is exactly because even though the primary reference had an access control system, he prevailed that his access control system was different from the prior art. After having gotten a patent because of the distinctiveness of his particular means, you want his claim scope to be construed to ignore the distinction and include exactly the prior art he argued his invention was different from. Sorry, it doesn't work like that.