KSR’ s Phosita Creativity Applies to Indefiniteness

Patent.Law036Allvoice Computing v. Nuance Comm. (Fed. Cir. 2007)

Allvoice appealed after the Texas court found its means-plus-function claim elements indefinite under 35 U.S.C. § 112. The patent relates to voice recognition software.

PHOSITA Creativity: A means plus function element is considered indefinite if a PHOSITA “would be unable to recognize the structure in the specification and associate it with the corresponding function in the claim.”

On appeal, the CAFC took a cue from KSR v. Teleflex — finding that a PHOSITA is creative and “not an automation.” For software cases, this means that the specification “need only disclose adequate defining structure to render the bounds of the claim understandable to one of ordinary skill in the art.  Here, the CAFC found that the algorithm flowchart (see figure) was sufficient structure.

Best Mode: The appellate panel also included the reminder that the best mode requirement only extends to the claimed invention.


  • Part of an increasing trend, Professor Paul Janicke performed the claim construction.

6 thoughts on “KSR’ s Phosita Creativity Applies to Indefiniteness

  1. Has anyone read this decision? If so, can you help me understand how the USDC could find the whole patent invalid on the basis of 3 of 70+ claims being indefinite. Does one claim that is indefinite or lacks antecedent support bugger the whole patent? News to me. OK, sure if that claim is the only independent.

    Also note how the CAFC deftly used the file history to convert “at least one of a plurality” of Claim 60 to “a plurality.”

    Finally, is there a Rule in the FRCivP that says if the trial court appoints an expert in a case and he turns out to be brain-dead, that the expert has to pay the costs and legal fees of the appeal that was required to reverse on the grounds that his brain really was dead.

  2. Please lose the animated advertisement. It is interfering with my system’s spam/fishing detector.

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