According to my husband, the patent examiner, what you call "structural equivalents," he calls "means-plus-function." That is, if a patent claims a structure capable of performing a function, then it is a way of reciting function in an apparatus claim. If only structure is recited, then the function does not matter when the claim is evaluated. Whereas, if you use means-plus-function language, you do consider the function of the structure. A structural equivalent would mean any structure capable of performing that function. Thus, determining structural equivalents, or means-plus-function, is part of claim construction, which, as we have already seen, is a question of law for the judge.
I don't understand the function of the jury in determining infringement well enough, so I will respond more in depth later. However, Cybor involved a means-plus-function aka structural equivalent claim and the judge decided it. If you have a copy of Ericcson's argument, I'd like to see it. |
