by Dennis Crouch

The U.S. Court of Appeals for the Federal Circuit recently affirmed a finding by  Western District of Texas Judge Alan Albright that certain claims in two patents owned by WSOU Investments LLC were invalid as indefinite under 35 U.S.C. §112.  WSOU Invs., LLC v. Google LLC, Nos. 22-1066, -1067 (Fed. Cir. Sept. 25, 2023).  Although the decision is designated nonprecedential, it includes a number of interesting lessons on the requirements for definiteness and disclosure of corresponding structure under 35 U.S.C. §112.

The Technology at Issue

The first patent at issue was U.S. Patent No. 7,304,563 (“the ‘563 patent”), entitled “Alarm clock.” This patent claimed an alarm clock feature for mobile phones where the alarm involved initiating a connection to another device over a network to cause that device to signal the alarm.

Claim 16 is is recited in means-plus-function form:

issuing means for issuing an alert when the current time matches the alert time by initiating a connection to another communication terminal over a network so as to cause that other terminal to locally signal the incidence of the connection incoming thereto

‘563 Patent, claim 16. Claim 16 is clearly written in means-plus-function form, but the focus of the appeal was on claim 1, which was substantially similar.  The key difference though is that the claim 1 limitation was directed to “an alerting unit” rather than an “issuing means:”

an alerting unit configured to issue an alert when the current time matches the alert time, the alerting unit being configured to issue the alert by initiating a connection to another communication terminal over a network so as to cause that other terminal to locally signal the incidence of the connection incoming thereto

‘563 Patent, claim 1.  Judge Albright found both claims to be in means-plus-function form and the Federal Circuit affirmed on appeal.

In patent law, “means-plus-function” (MPF) claiming is a way to define an element of a patent claim by the function it performs rather than by its specific structure. This type of claiming is governed by 35 U.S.C. § 112(f), which allows patentees to express a claim limitation as “a means or step for performing a specified function.” When a claim is interpreted under § 112(f), the claim limited to the specific structure disclosed in the specification and equivalents thereof.   This limitation to actually disclosed structure (and equivalents) severely limits the scope of MPF claims that often seem much broader when read in the abstract.  But, the beauty of MPF analysis is that it is designed to preserve the validity of claims that might be unduly indefinite, not enabled, or even extent to ineligible subject matter.   Patentees often fall into the common trap of using of MPF limitations without providing adequate structure within the specification.  If no structure is disclosed in the specification for a means-plus-function (MPF) claim, the claim is deemed indefinite and therefore invalid. In re Donaldson Co., 16 F.3d 1189 (Fed. Cir. 1994).

The Federal Circuit has established a two-step framework for determining whether a claim limitation is subject to MPF construction under 35 U.S.C. 112(f). First, the court must determine if the limitation uses the term “means.” If so, a rebuttable presumption is triggered that 112(f) applies. Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015). Prior to Williamson, there was a strong presumption associated with use of the word “means.”  In particular, courts generally assumed that a claim term that did not use the word “means” was not subject to § 112(f) interpretation. Williamson altered this landscape by holding that the presumption can be quickly overcome, even if the word “means” is not present, if the claim term fails to recite sufficiently definite structure or else recites a function without reciting sufficient structure for performing that function.

In Williamson, the court noted that patentees had begun using various “nonce words” that were effectively non-limiting placeholders designed to avoid MPF interpretation.  Here, for instance, the claimed “alerting unit” is roughly equivalent to a means-for-issuing-an-alert.  The presumption against MPF can quickly be overcome in situations where the patentee uses a nonce word to designate the element if the limitation generally fails to recite sufficiently definite structure.

Looking particularly at claim the court first noted the rebuttable presumption against means-plus-function treatment since Claim 1 is directed to a “unit” and does not use the term “means.”  In rebutting the presumption, the court agreed with Judge Albright that in the context of the claims and specification, the term “unit” was defined only by the function it performs, rather than connoting any specific structure.  In its analysis, the court held that the language surrounding “alerting unit” in the claim consisted of purely functional language that provided no structural context. Terms like “configured to issue an alert” and “initiating a connection” were purely functional.  The court also looked to the specification to see how the “alerting unit”  phrase was used — finding that it was also described in the same purely functional terms as the claim language.  In the end, the appellate panel agreed with the district court that “unit” and “means” were used interchangeably in the patent, indicating “unit” was a generic placeholder rather than structural term.

The patentee WSOU had offered expert testimony on point, but the appellate court rejected the extrinsic evidence for its attempt to be a “gap filler.”

To the extent that WSOU argues that the ‘interpretation of what is disclosed in the specification must be made in the light of knowledge of one skilled in the art,’ it invites us to improperly use the knowledge of a skilled artisan as a gap-filler, rather than a lens for interpretation.  WSOU argues that a skilled artisan would ‘understand the structure involved with a mobile phone using GSM ….

However, those arguments are irrelevant as The indefiniteness inquiry is concerned with whether the bounds of the invention are sufficiently demarcated, not with whether one of ordinary skill in the art may find a way to practice the invention.

WSOU (internal citations and quotations removed).  This quote from the appellate panel rejects WSOU’s attempt to use expert testimony regarding PHOSITA to overcome the lack of structural disclosure in the specification. The court emphasizes that gaps in the specification cannot be filled by skilled artisan knowledge during the 112(f) analysis.

Having determined that claim 1’s “unit” was in MPF form, the court then moved to the next step — looking for the corresponding structure within the specification to perform the claimed function.  On appeal, the appellate panel again agreed with Judge Albright that no such structure had been disclosed.  The court examined the disclosed processor, communication engine, antenna, and communication protocols , but found no clear link between these components and the claimed function of “initiating a connection to another communication terminal over a network.” Rather, the specification disclosed these structures in a general sense without specifically tying them to the network connection function. Merely mentioning general components is insufficient to provide corresponding structure for a means-plus-function limitation. Because the patentee failed to disclose adequate structure for the “alerting unit” limitation under 112(f), Claim 1 was held invalid as indefinite.

For the ‘563 patent, the court determined that the “issuing means” limitation in Claim 16 was subject to 35 U.S.C. §112(f), which governs interpretation of means-plus-function claim limitations. The court identified two functions for this means-plus-function limitation: (1) initiating a network connection to another device, and (2) causing signaling means to locally signal the user. The court held that the specification failed to disclose sufficient structure corresponding to either of these functions, and therefore the claim was indefinite under §112(f). The court reached the same conclusion regarding the similar “alerting unit” limitation in Claim 1.

I quibble with the Federal Circuit’s doctrine on MPF indefiniteness. In particular, the court’s precedent creates an if-then approach: if no sufficient structure then automatically indefinite.  I would suggest an additional step asking whether the claim provides reasonably certain scope, recognizing that 112(f) was particularly designed to permit flexibility using narrowing of claims rather than invalidation.

the plurality of parts [including] a first part closest to a center, a third part farthest from the center, and a second part in between the first part and the second part.

‘681 patent, claim 1 (simplified).  You can see that the claim requires a “second part” located between the first and second part.  Nonsense.  It is pretty clear to me that the patentee intended (but did not claim) that the second part would be between the first and third parts.   Unfortunately for the patentee, this exact typo was also found within the specification, and the patent did not include a clear drawing showing the correct aspect.

The court emphasized that it cannot redraft claims to contradict their plain language, even to make them workable.

We have explained repeatedly and consistently, ‘courts may not redraft claims, whether to make them operable or to sustain their validity.’ Chef Am., Inc. v. Lamb-Weston, Inc., 358 F.3d 1371 (Fed. Cir. 2004). Even ‘a nonsensical result does not require the court to redraft the claims of the [patent at issue]. Rather, where as here, [when] claims are susceptible to only one reasonable interpretation and that interpretation results in a nonsensical construction of the claim as a whole, the claim must be invalidated.’ Id.

Slip OP.

The patents here were both originally owned by Nokia.  They were later transferred to WSOU, a patent assertion entity associated with Craig Etchegoyen, a former CEO of another patent assertion entity, Uniloc.

by Dennis Crouch

I have been thinking about the potential rise in the use of means-plus-function (MPF) claims as a reaction to indefiniteness cases such as Williamson v. Citrix as well as pressure from other doctrines, including enablement, written description, and eligibility.  But, my preliminary data show that the foretold rise has not yet come.  As the chart above illustrates, MPF claims continue their descent into obscurity, with no sign from the preliminary data of rising from the grave any time soon.

The chart above shows a visualization of the percentage of issued patents that include means-plus-function (MPF) claims over time, with two separate estimates based on the wording used in the claims. MPF claims are a particular type of claim in patent law that allows an inventor to claim an invention based on the function that it performs, rather than the specific structure or materials used. 35 U.S.C. 112(f).  Although MPF claims may seem broad on their face, the statute limits their scope to cover only the corresponding structures disclosed in the patent document (the specification) and their equivalents.

The chart shows a clear trend: a decline in the use of MPF claims from 1980 through to the mid-2020s. The high estimate in the chart indicates the broader inclusion of MPF claims that use the word “Means,” shows a more substantial presence and a steeper decline than the low estimate, which tracks claims specifically using the phrase “Means For” or “Means To.”

The decline in MPF claims can be linked to several legal decisions and changes in patent doctrine. Historically, MPF claims were indeed a powerful tool, as they allowed patent holders to claim a range of equivalent structures that performed the same function, without having to list them all out.  However, this breadth of protection has been significantly curtailed by precedential decisions that have limited the scope of the claims (as required by the statute) and invalidated many MPF claims as indefinite (something that I believe is not required by the statute). These decisions from the 1980s and 1990s began the downward drive of MPF usage.

Functional claiming is a constant lure for patent drafters.  The an invention’s function (what result it obtains) is typically tied more directly to the market and business goals than the particular structure or technological details used to reach that end. A functional claim limitation offers the tantalizing ideal of broad coverage and technological flexibility. By defining an invention by what it does rather than the nuts and bolts of how it is accomplished, functional claims can appear to encompass any means for achieving the stated function. This breadth can deter competitors by making it more difficult for them to design around the patent. Additionally, defining an invention functionally may allow the claim scope to adapt to future technological advances that arise after the patent filing date, as long as the new technologies perform the claimed function. The functional format also simplifies claim drafting for complex inventions and supports filing patents amidst technological uncertainty before landing on a final design.

As MPF claims were declining, patent applicants still felt the draw for functional limitations and began to use alternative claiming strategies.  Rather than a “means for” performing an algorithm, applicants began claiming a “processor configured to” perform the algorithm, or other alternatives that avoided the magical words “means.” Under the (old) precedent, the use of alternative words such as “processor for” were ordinarily not treated as means-plus-function form and therefore did not have the narrow construction and invalidity risk mentioned above.

In its important 2015 decision in Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) (en banc), the Federal Circuit changed the law again — going after these non-means nonce words.  Williamson established the absence of the term “means” no longer creates a strong presumption against applying MPF construction.  Thus, words such as “mechanism for,” “module for,” “device for,” and “member for” are all likely to be treated as invoking 112(f) means-plus-function construction absent some indication that the limitation directly imparts a structural limitation.

Moreover, enablement and written description requirements have clamped down on non-MPF-style functional claims. For example, in Amgen v. Sanofi, the 2023 Supreme Court invalidated Amgen’s broad functional genus claim covering for monoclonal antibodies that bind to PCSK9 to lower cholesterol.  The case suggests that some broad functional limitations might never be enabled even with extensive disclosure.  Eligibility cases raise similar issues with functional limitations undergoing significant scrutiny. In Electric Power Group, for instance, the Federal Circuit explained that the “result-focused, functional character of claim language has been a frequent feature of claims held ineligible under § 101.”

One seeming solution to all of these arising issues is for patent applicants to more directly assert MPF claim limitations and include a number of embodiments.  But, for now at least, the miracle resurgence of MPF remains elusive.

= = =

Just to confirm that there not a lagging rise in MPF usage, I did the parallel analysis on claims found in published applications and found similar results with continued decline of the use of “means” and “means for” language up through applications published in 2023.

by Dennis Crouch

Today’s post introduces the new decision in Sisvel International S. A. v. Sierra Wireless, Inc., No. 22-1493 (Fed. Cir. Oct. 6, 2023).  Here, I focus on two distinct issues. The first part has to do with motivation-to-combine, with the decision offering some good language for patent prosecutors attempting to overcome weakly worded office actions.  The second part focuses on means-plus-function language and concludes with my rant about the court’s unduly complicated layers of tests.  The case also upholds a single-reference obviousness holding, but I didn’t write about that portion of the decision.

Justifying a Motivation to Combine

In the IPR, the PTAB cancelled some claims of Sisvel’s U.S. Patent No. 6,529,561 based upon a single-reference obviousness determination (Chen; WO 99/26371), but sided with the patentee as to other claims. The Board particularly found no motivation to combine One of the key reasons was because of a lack of motivation to combine Chen with other GSM references.

On appeal, the Federal Circuit affirmed these findings.  US patent law has a long history of debate with regard to combination claims, with the Supreme Court’s most recent pronouncement in KSR reaffirming its old pronouncement that a combination of known elements is likely obvious absent some justification for deciding otherwise.  KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007).

[I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. . . . The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.

Id.  Referencing Sakraida v. Ag Pro, Inc., 425 U.S. 273 (1976); Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969); and Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950).

Despite this lower bar, IPR petitioners still have the burden of at least explaining why a skilled artisan would have been be motivated to combine various references to form the claimed invention.  This is so, even if that explanation is simply a showing of how its case fits the model set out in KSR.

Here, however, the Board concluded that the IPR petitioner had failed that low burden.  In particular, in this case the petitioner offered “reasons to combine [that] were merely assertions that the references were analogous art, which, without more, is an insufficient articulation for motivation to combine.”  Rather, as KSR suggests, the known elements need to be combined “according to known methods” and yield only “predictable results.”  Although the petitioner might have recited these legal conclusions in its petition, the Board found them too conclusory and lacking in clarity.  Rather, the Board indicated that a proper motivation to combine analysis would explain how the primary reference is modified by the GSM reference.  As I mentioned above, this is a fairly low standard under KSR, but the Board explained that the petition failed to explain: “what reference is the primary versus secondary reference, what elements are missing from the primary reference, what elements should be added from the secondary reference to reach the claimed invention, or why those particular elements would be obvious to add.”

On appeal, the Federal Circuit affirmed the lack of motivation to combine – holding that “we cannot fault the Board for being at a loss in trying to decipher Cross-Appellants kitchen-sink of unclear and confusing motivation-to-combine arguments.”

Sisvel’s ’561 patent, owned by Sisvel, relates to improving channel coding techniques in transmitting data for radio systems. Channel coding adds redundant data bits to a data block before transmission to allow a receiver to better detect and correct errors caused by noise or other interference. The invention particularly employs “link adaptation” and “incremental redundancy” to optimize channel coding. Link adaptation allows the transmitter to adjust the code rate between data block transmissions by changing the number of redundant bits. Incremental redundancy allows the receiver to combine original and retransmitted data blocks to improve decoding.

The Federal Circuit’s affirmance on motivation to combine could be useful for patent prosecutors facing obviousness rejections. While the explanatory burden on an IPR petitioner is higher on the IPR petitioner than on a patent examiner, prosecutors may find Sisvel helpful in arguing an examiner provided inadequate rationale for combining references. Patent applicants could cite Sisvel in contending an office action improperly combines references without particularly explaining: (1) the primary and secondary references; (2) missing elements supplied by the secondary reference; (3) why a skilled artisan would have looked to the secondary reference to fill gaps in the primary reference; (4) why adding the secondary reference’s teaching would yield predictable results; etc. Although Sisvel arose in the context of invalidity allegations by an IPR petitioner, the motivation to combine principles apply equally during prosecution. By requiring examiner explanations meet KSR’s standards, applicants may succeed in overcoming some obviousness rejections.

= = =

The Noah Test as One Layer of Means Plus Function Analysis

The case also includes an interesting discussion about a means-plus-function limitation found in some of the claims, and the question of whether the claim is indefinite.  As you know, a claimed means plus function limitation is interpreted as covering the corresponding structures disclosed within the specification along with their equivalents.  35 U.S.C. 112(f).  But we have a special null case — if no such structures are disclosed then the Federal Circuit has ruled that the associated claim is automatically invalid as indefinite.  This gets a bit trickier for inter partes review proceedings since the petitioner is not permitted to challenge claims based upon indefiniteness. In Intel Corp. v. Qualcomm Inc., 21 F.4th 801 (Fed. Cir. 2021), the Federal Circuit instructed the PTAB to take the following approach to potentially indefinite MPF claims:

1. Impossibility: Determine that the claim is indefinite and then decide whether the indefiniteness prevents a prior art analysis (the “impossibility” conclusion); or
2. Possibility: Explain why it is able to construe the claim and resolve the prior art issues despite potential indefiniteness.

In either case, the PTAB needs to make some moves toward determining whether the limitation includes sufficient structural support in the specification.

Here, Claim 5 of the ’561 patent requires a “means for detecting a need for retransmission.”  The specification does not specify a particular algorithm to accomplish this goal, but does disclose protocols like “ARQ” and “hybrid ARQ.”  In situations like this, the Federal Circuit has created an unduly complicated framework  to determine whether expert testimony can be used to fill gaps in the structural explanation of algorithmic MPF claims. Noah Systems, Inc. v. Intuit Inc., 675 F.3d 1302 (Fed. Cir. 2012). At step one, the Noah framework specifically asks whether any algorithm is disclosed.  If no algorithm then no expert. In Noah step two, where an algorithm is disclosed but arguably inadequate, its sufficiency is judged based on a skilled artisan’s perspective and expert testimony is permitted to support the conclusions. Id.

Here, the PTAB found that references to “ARQ” and “Hybrid ARQ” were not algorithms.  On appeal the Federal Circuit found error in that conclusion. In particular, the court held the PTAB erred by not evaluating the protocol names under the step two framework. The court explained that even “brief disclosures” may warrant assessing expert views on their import to a skilled artisan. Because the specification explicitly referenced protocols, it was not wholly devoid of structure. The court vacated and remanded for the PTAB to conduct a step two analysis, including evaluating expert testimony.

This holding provides useful guidance for assessing computer-implemented means-plus-function claims. The Federal Circuit appropriately avoided rigid formalism, recognizing algorithm disclosures need not detail every step and by recognizing that  reference to commercially available tools can satisfy the structural requirement of 112(f).  Still, I would have simplified this approach and simply held that the claim covered the disclosed protocols. After Sisvel, courts evaluating software means-plus-function limitations must carefully walk the line between Noah’s step one and two.

Conclusions: The means-plus-function doctrine was originally designed to allow patent applicants to claim an element by the functions it performs rather than reciting structure, with the goal of providing a simple and flexible claiming technique. However, as evidenced by the complicated Noah framework sitting atop Williamson and Donaldson, Sisvel’s nuanced analysis of whether disclosed protocols qualify as algorithms, means-plus-function claims have become one of the more complex and controversial doctrines in patent law. The current morass of rules, exceptions, and expert testimony required to assess even basic computer-implemented means-plus-function claims suggests the doctrine has veered far from its original purpose. In my view, courts should seek to simplify the rules and refocus on whether the specification provides sufficient information to allow a skilled artisan to understand the boundaries of the functional claim element.

= = =

• Sisvel International S.A.: Represented by Robert Gajarsa, Timothy Devlin, and Neil Benchell of Devlin Law Firm.
• Sierra Wireless, Inc.: Represented by Kourtney Merrill of Perkins Coie LLP and Amanda Tessar.
• Telit Cinterion: Represented by Guy Yonay of Pearl Cohen and Kyle Auteri.
• Opinion: Authored by Judge Chen and joined by Chief Judge Moore and Judge Clevenger.

by Dennis Crouch

WSOU Investments LLC v. Google LLC, Nos. 2022-1063, 2022-1065 (Fed. Cir. Oct. 19, 2023)

WDTX District Court Judge Alan Albright sided with the accused infringer in this case — holding that the asserted claims were invalid as indefinite.  The setup here is a common scene: means plus function (MPF) claim limitations without adequate support in the specification.

Most commonly patentees draft claims that cover the physical structure of an invention or the particular steps taken in a process. However, the Patent Act also permits a patentee to claim the elements of an invention as “means for” accomplishing a specified function without actually claiming the structural components. Although a “means for holding hot coffee” appears potentially broader than claiming a “ceramic mug,” the statute itself places key limits on the scope of these so-called “means plus function” claims. In particular, a means for limitation is interpreted to only cover the “corresponding structure” disclosed in the specification and their equivalents. 35 U.S.C. § 112(f). And, a series of Federal Circuit cases have created a bright line rule that a means-plus-function limitation will render the entire claim invalid as indefinite in situations where no corresponding structure is provided in the specification. This is the case even in situations where various ways to perform the claimed means are well known to those of skill in the art. See, e.g., Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1351-52 (Fed. Cir. 2015); Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1337-38 (Fed. Cir. 2008).  In this situation, my “means for holding hot coffee” might not even cover a ceramic mug if the specification itself only discloses paper cups. And, the claim would be invalid if it failed to disclose any particular embodiments of a hot-coffee-holding device.

A patentee intending to invoke 112(f) style claiming will typically use the magic words “means for …” However, the Federal Circuit concluded that claim meaning is a matter of objective analysis, rather than subjective intent.  In MPF analysys, the court looks beyond the magic words and more generally ask whether the limitation recites a non-structural “nonce” word.  A “nonce” word is a verbal construct that does not convey a particular structure, such as “element,” “device,” or other generic, non-structural terms.  When a nonce word is interpreted in means plus function form, the corresponding structure in the specification must be something more than a repeat of the same nonce word — lest the claim be found invalid as indefinite.

In this case, the two patents at issue are related to image tracking technology (the ‘045 patent) and gesture control technology (the ‘825 patent).  The following claim terms were the ones disputed:

1. “a processor configured to …” (‘045 patent)
2. “at least one memory and the computer program code are configured, with the at least one processor, to cause the apparatus to …” (”825 patent)

U.S. Patent Nos. 8,965,045 and 9,335,825.

Judge Albright found each of these underlined terms to be in “nonce” form and therefore applied MPF analysis.  A processor is a means for processing; a memory is a means for storing data; etc.  According to Judge Albright, the patent document did not provide any further structural disclosure beyond the functional words — thus rendering the claims indefinite.

On appeal, WSOU argued on appeal that the limitations were not means-plus-function limitations, and thus § 112, ¶ 6 did not apply. Alternatively, it argued the specifications disclosed adequate structure.

As to the ’045 patent, the Federal Circuit affirmed the district court’s determination that the “processor” limitation invoked § 112, ¶ 6 because in the context of the claims and specification it was described only functionally and generically. The court concluded that the patentee had focused its arguments on the processor being not-MPF and had waived any arguments regarding corresponding structure. “WSOU argues for the first time on appeal that the specification discloses corresponding structure.”

As to the ’825 patent, the Federal Circuit reversed. It held that the “memory,” “code,” and “processor” limitations in this patent, read in context of the claims and specification, would connote sufficient structure to avoid § 112, ¶ 6. The court distinguished the ’825 patent’s more specific description of these elements.

So, we have the word “processor” interpreted as a nonce word invoking MPF analysis in one patent; but a structural limitation in the second patent.   The difference here is that in the ‘045 patent, the patentee “treats the word ‘processor’ so broadly as to generically be any structure that manipulates data” but without providing specific examples.  On the other hand, the ‘825 patent included a much more concrete explanation of the term. The court explained:

In contrast to the ‘045 patent, the specification [in the ‘825 patent] describes the ‘processor’ as hardware that runs the computer program code. Specifically, the specification teaches that the term ‘processor’ is synonymous with terms like controller and computer and ‘should be understood to encompass not only computers having different architectures such as single/multi-processor architectures and sequential (Von Neumann)/parallel architectures but also specialized circuits such as field-programmable gate arrays (FPGA), application specific circuits (ASIC), signal processing devices and other devices.’

Thus, the intrinsic evidence from the specification justified the distinction.  One odd note here is that I did read through the ‘045 patent and it does seem to include a bit more than what was suggested by the court. In particular, the ‘045 patent has the same quoted statement that a processor:

should be understood to encompass not only computers having different architectures such as single/multi-processor architectures and sequential (Von Neumann)/parallel architectures but also specialized circuits such as field-programmable gate arrays (FPGA), application specific circuits (ASIC), signal processing devices and other processing circuitry. …

‘045 patent. In addition, the ‘045 patent indicates that a processor could be configured as “processing circuitry” that includes a combination of implementations including microprocessor(s).

The Federal Circuit did not consider these factual similarities because, apparently the patentee raised them as to the ‘045 for the first time on appeal.   If I were the patentee, I might review this decision carefully and consider whether a request for panel rehearing is appropriate — is it true that the patentee only preserved the structure argument as to one of the patents?

In any event, the case is interesting for the outcome — the Federal Circuit finding that Judge Albright is being too tough on patentees.