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Wednesday, October 14, 2015

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REVERSED
Tech Center 2400 Networking, Multiplexing, Cable, and Security
2484 Ex Parte Kahn et al 11501985 - (D) SHIANG 103 THE DIRECTV GROUP, INC. ZHAO, DAQUAN

Tech Center 2600 Communications
2689 Ex Parte LU et al 11841486 - (D) McCARTNEY 112(6) ROBERT E MALM POINT, RUFUS C

The Federal Circuit considered a similar situation involving the same technology and real party in interest in In re Avid Identification Systems, Inc., 504 F. App’x 885 (Fed. Cir. 2013) (non-precedential). The majority opinion acknowledged the possibility that the “procedure for interpreting the ‘means for . . . ’ clause was not followed,” although the majority characterized Avid’s handling of the issue as an “alleged procedural fault.” Id. at 889–90. The dissenting opinion determined the PTO failed to establish the cited art disclosed the limitations at issue because the PTO did not perform the necessary 35 U.S.C. § 112 ¶ 6 analysis. See id. at 891–94 (Clevenger, J., dissenting). Because both Avid opinions agree “the use of the word ‘means’ requires a search for structure in the application at issue,” id. at 890, we find the Examiner erred in not performing this analysis.

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