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Cochlear Bone Anchored Solutions AB v. Oticon Medical AB (Fed. Cir. May 15, 2020)

The Court of Appeals for the Federal Circuit affirmed the Patent Trial and Appeal Board's determination that claims 7-9 are indefinite because the specification lacks a corresponding structure for a means-plus-function element, and remanded the Board's decision regarding claim 10.

Regarding the limitation "directivity means comprising at least one directivity dependent microphone and/or signal processing means in the electronic circuitry" in Claim 10 which creates three alternative subsets of claim coverage due to the use of the disjunctive "and/or,"

the court stated that anticipation and obviousness analysis is still possible in an inter partes review under Samsung v. Prisua Engineering if at least one claimed alternative is not indefinite under 35 U.S.C. § 112.

The court also added that "the Board should consider on remand whether the directivity-dependent-microphone alternative is outside the scope of § 112, sixth paragraph, because it recites a structure (the directivity dependent microphone) that sufficiently corresponds to the claimed directivity means," and also "should consider whether any asserted prior art challenges render the directivity-dependent-microphone alternative within claim 10 unpatentable, if considered on its own, and whether, if so, claim 10 as a whole is unpatentable on that ground."

Read the case here.

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