United States Court of Appeals
for the Federal Circuit
__________________________
TYPHOON TOUCH TECHNOLOGIES, INC.,
Plaintiff-Appellant,
v.
DELL, INC. AND LENOVO (UNITED STATES), INC.,
Defendants-Appellees,
and
SAND DUNE VENTURES, INC.,
Defendant-Appellee,
and
TOSHIBA AMERICA INFORMATION SYSTEMS,
INC.,
Defendant-Appellee,
and
FUJITSU AMERICA, INC.
(FORMERLY KNOWN AS FUJITSU COMPUTER SYSTEMS
CORPORATION),
Defendant-Appellee,
and
PANASONIC CORPORATION OF NORTH
AMERICA,
Defendant-Appellee,
and
APPLE, INC.,
TYPHOON TOUCH v. DELL INC 2
Defendant,
and
HTC AMERICA, INC.,
Defendant-Appellee,
and
PALM, INC.,
Defendant-Appellee.
__________________________
2009-1589
__________________________
Appeal from the United States District Court for the
Eastern District of Texas in Case No. 07-CV-0546, Judge
Leonard Davis.
_________________________
Decided: November 4, 2011
________________________
CHARLES R. WOLFE, JR., Blank Rome LLP, of Washing-
ton, DC, argued for plaintiff-appellant. With him on the
brief were PAUL M. HONIGBERG, BRIAN WM. HIGGINS and
JACK L. HOBAUGH, JR. Of counsel was H. KEETO
SABHARWAL.
EDWARD R. REINES, Weil, Gotshal & Manges LLP of
Redwood Shores, California, and JOSEPH R. RE, Knobbe,
Martens, Olson & Bear LLP, of Irvine, California, argued
for all defendants-appellees. On the brief for defendants-
appellees Dell Inc. and Lenovo (United States), Inc. were
HAROLD H. DAVIS, JR., K&L Gates LLP, of San Francisco,
California, and RODERICK B. WILLIAMS, of Austin, Texas. On
3 TYPHOON TOUCH v. DELL INC
the brief for defendant-appellee Toshiba America Informa-
tion Systems, Inc., were IRFAN A. LATEEF, JON W. GURKA
and AHSAN G. IMAM, Knobbe, Martens, Olson & Bear LLP,
of Irvine, California. On the brief for defendant-appellee
Fujitsu America, Inc., were BARTON E. SHOWALTER,
DOUGLAS M. KUBEHL and DAVID O. TAYLOR, Baker Botts
LLP, of Dallas, Texas. On the brief for defendant-appellee
Panasonic Corporation of North America were DANIEL S.
EBENSTEIN, JOSEPH M. CASINO, ABRAHAM KASDAN and DAVID
A. BOAG, Amster Rothstein & Ebenstein LLP, of New York,
New York. Of counsel was MARC JASON. On the brief for
defendant-appellee Apple Inc., was JESSICA L. DAVIS, Weil,
Gotshal & Manges LLP of Redwood Shores, California, and
DANNY L. WILLIAMS, Williams, Morgan & Amerson, P.C., of
Houston, Texas. Of counsel was ERIC M. ALBRITTON, Albrit-
ton Law Firm, of Longview, Texas. On the brief for defen-
dant-appellee HTC America, Inc. were JONATHAN M. JAMES,
DAN L. BAGATELL and DAVID J. PALMER, Perkins Coie Brown
& Bain P.A., of Phoenix, Arizona. On the brief for defen-
dant-appellee Palm, Inc., was MICHAEL M. MARKMAN, Cov-
ington & Burling LLP, of San Francisco, California. Of
counsel was ROBERT J. WILLIAMS.
__________________________
Before RADER, Chief Judge, NEWMAN, and PROST, Circuit
Judges.
NEWMAN, Circuit Judge.
Typhoon Touch Technologies, Inc. (“Typhoon”) appeals
the decision of the United States District Court for the
Eastern District of Texas, holding the patents in suit invalid
and not infringed based on the district court’s construction
TYPHOON TOUCH v. DELL INC 4
of the claims. 1 At issue are Typhoon’s United States Pat-
ents No. 5,379,057 (“the ’057 patent”) and No. 5,675,362
(“the ’362 patent”). The defendants are Dell, Inc.; Lenovo
(U.S.), Inc.; Sand Dune Ventures, Inc.; Toshiba American
Information Systems, Inc.; Fujitsu America, Inc.; Panasonic
Corp. of North America; Apple, Inc. (dismissed); HTC Amer-
ica, Inc.; and Palm, Inc., as manufacturers and/or sellers of
laptop and tablet computers and handheld devices such as
telephones with additional capabilities.
The district court’s rulings concerning the claim terms
“memory for storing,” “processor for executing,” “operating
in conjunction,” and “keyboardless” are affirmed, and on
these rulings the judgment of noninfringement is affirmed.
We reverse the ruling that the claim term “means for cross-
referencing” is indefinite, and reverse the summary judg-
ment of invalidity on the ground of claim indefiniteness.
DISCUSSION
The ’057 and ’362 patents are titled “Portable Computer
with Touch Screen and Computer System Employing Same,”
and are of related content. We refer primarily to the specifi-
cation and claims of the ’057 patent, as did the district
court. The “Abstract” in the ’057 patent describes the
general subject matter of both patents, as relevant to this
appeal:
A portable, self-contained, general-purpose, key-
boardless computer utilizes a touch screen display
for data entry purposes. An application generator
allows the user to develop data entry applications
by combining the features of sequential libraries,
1 Typhoon Touch Technologies, Inc. v. Dell, Inc.,
No.6:07-cv-00546-LED, 2009 U.S. Dist. LEXIS 64013 (E.D.
Tex. July 23, 2009).
5 TYPHOON TOUCH v. DELL INC
consequential libraries, help libraries, syntax librar-
ies, and pictogram libraries into an integrated data
entry application. A run time utility allows the
processor to execute the data entry application.
’057 patent, col. 2 II.58-66.
The patents recite the deficiencies of portable devices
that require a keyboard for entry of data, and describe the
advantages of a portable system using a touch screen.
Claim 12 of the ’057 patent was designated as representa-
tive (with emphasis added to the terms at issue on this
appeal):
12. A portable, keyboardless, computer comprising:
an input/output device for displaying inquiries
on a touch-sensitive screen, said screen configured
for entry of responses to said inquiries;
a memory for storing at least one data collection
application configured to determine contents and
formats of said inquiries displayed on said screen;
a processor coupled to said memory and said in-
put/output device for executing said data collection
application; and
an application generator for generating said
data collection application and for creating different
functional libraries relating to said contents and
said formats displayed on said screen, said applica-
tion generator further comprising means for cross-
referencing responses to said inquiries with possible
responses from one of said libraries; and
TYPHOON TOUCH v. DELL INC 6
a run-time utility operating in conjunction with
said processor to execute said application and said
libraries to facilitate data collection operations.
The terms “memory for storing” and “processor for execut-
ing” are included in all of the claims of the ’057 and ’362
patents, and the term “operating in conjunction with” is in
all of the claims of the ’057 patent and claims 1-11 of the
‘362 patent.
The district court construed the claim as requiring that
a device, to be covered by the claim, actually performs, or is
configured or programmed to perform, each of the functions
stated in the claim. Typhoon states that this requirement is
met if the device has the capability of being configured or
programmed to perform the stated function, although not so
structured in the device provided by a defendant. This
aspect is the basis of the judgment of noninfringement.
“Memory for storing”
The district court construed the claim clause “a memory
for storing at least one data collection application configured
to determine contents and formats of said inquiries dis-
played on said screen” as:
A memory that must perform the recited function
(i.e., storing a plurality of data collection applica-
tions, an operating system and data/ at least one
data collection application/ data collection applica-
tion and various libraries/ functional libraries/ a
data collection application and an operating sys-
tem).
Typhoon argues that the district court incorrectly included a
“use” limitation in an apparatus claim, by requiring that the
memory storing function “must” be performed. Typhoon
7 TYPHOON TOUCH v. DELL INC
directs attention to the statement in the specification that
the invention is “an improved, portable, general purpose
computer which permits facilitated data entry,” ’057 patent,
col. 2 ll. 16-22, and that it suffices if the memory function is
“permitted.” Thus Typhoon states that it suffices if the
memory is capable of being configured to store data collec-
tion applications, even if the memory is not so configured.
Typhoon emphasizes that the claims are not method claims,
and that it is irrelevant if the function is actually performed
by the device, if the device can be programmed or configured
to perform the function, citing Microprocessor Enhancement
Corp. v. Texas Instruments, Inc., 520 F.3d 1367 (Fed. Cir.
2008).
In Microprocessor, this court recognized that apparatus
claims may appropriately use functional language. How-
ever, the court did not deal with the situation in which an
apparatus does not perform the function stated in the claim
unless the apparatus is specifically so programmed or
configured. The court explained that the apparatus as
provided must be “capable” of performing the recited func-
tion, not that it might later be modified to perform that
function. See id. at 1375 (“[the claim] is clearly limited to a
pipelined processor possessing the recited structure and
capable of performing the recited functions”) (emphasis
omitted). Similarly in Fantasy Sports Props., Inc. v. Sport-
sline.com, Inc., 287 F.3d 1108, 1117-18 (Fed. Cir. 2002), the
court rejected “the proposition, as argued by Fantasy, that
infringement may be based upon a finding that an accused
product is merely capable of being modified in a manner
that infringes the claims of a patent.” See also Telemac
Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330
(Fed. Cir. 2001) (“[T]hat a device is capable of being modi-
fied to operate in an infringing manner is not sufficient, by
itself, to support a finding of infringement.”); High Tech
Med. Instrumentation, Inc. v. New Image Indus., Inc., 49
TYPHOON TOUCH v. DELL INC 8
F.3d 1551, 1555-56 (Fed. Cir. 1995) (the fact that the ac-
cused device could be altered in a way that satisfies the
claim term did not lead to infringement).
The district court, in reviewing the specification, held
that the “memory for storing” clause requires that the
memory is actually programmed or configured to store the
data collection application. See ’057 patent, col. 2 ll. 64-65
(“[T]he memory of the portable computer stores a data
collection application.”); col. 3 ll. 4-6 (“The CPU of the port-
able computer executes the application and processes the
manually entered data pursuant to the application.”). As
discussed in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir.
2005) (en banc), the specification is the primary source for
determining what was invented and what is covered by the
claims, elucidated if needed by the prosecution history.
No error of law or fact has been shown in the district
court’s construction of the “memory for storing” term as
requiring that the memory function is present in the device
in that the device is structured to store at least one data
collection application.
“Processor for executing”
The district court held that the “processor for executing
said data collection application” requires that “the recited
function must be performed (namely, executing the applica-
tion and the libraries to facilitate data collection opera-
tions).” Op. at 13, 2009 U.S. Dist. LEXIS 64013, at *31.
Typhoon argues that the “processor for executing” term
requires only that the device has the capability of being
programmed or configured to execute the data collection
application, and that infringement will lie even if it is not so
programmed or configured. Typhoon stresses that its inven-
tion is a portable device with flexible capabilities, not a
9 TYPHOON TOUCH v. DELL INC
device with a pre-programmed or pre-loaded data collection
application.
The district court observed, and we agree, that Ty-
phoon’s position is inconsistent with the patent prosecution
record where, in response to the examiner’s rejection on
prior art, the applicant narrowed the claims to executing
data collection applications that work with functional librar-
ies. The ’057 specification states that “data collection is
facilitated by using displayed help fields for each question or
subject, sequential and consequential libraries, and cross
referencing of entered responses.” ’057 patent, col. 3 ll. 15-
18. The patentee is bound by representations made and
actions that were taken in order to obtain the patent. See
Phillips, 415 F.3d at 1317 (“The purpose of consulting the
prosecution history in construing a claim is to 'exclude any
interpretation that was disclaimed during prosecution.’”
(quoting Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384
(Fed. Cir. 2005))).
The district court’s construction of the “processor for
executing” term is in accord with the patentee’s statements
in the specification and during prosecution of the patent
application, and is confirmed.
“Operating in Conjunction”
For the claim clause “operating in conjunction with said
processor to execute said application and said libraries to
facilitate data collection operations,” the district court held
that no “construction” was necessary because the meaning
was clear. Typhoon argues that the court erred, for the
court deemed it to be clear that the run-time utility/ execu-
tor/ application generator must be configured and pro-
grammed to operate in conjunction with the processor
operating system, whereas Typhoon states that the clause is
TYPHOON TOUCH v. DELL INC 10
not so limited. Typhoon again argues that the district court
improperly injected a “use” requirement into the claim, and
that it suffices if the computer-implemented structures can
be configured to operate in conjunction with each other,
whether or not they have been so configured in the device
charged with infringement.
The specification describes the invention as “an im-
proved portable computer . . . which is specifically adapted
for facilitated data collection and recordation.” ’057 patent,
col. 2 II. 44-47. The district court’s holding that the claims
require actual adaptation, by program or configuration,
conforms with the inventors’ description of what they in-
vented. We discern no error in the district court’s view that
this term requires that the device is programmed or config-
ured to perform the stated function.
“Keyboardless”
The term “keyboardless” appears in all of the claims in
suit. The district court construed the term to mean “with-
out a mechanically integrated keyboard.” Typhoon argues
that this construction is more restrictive than the descrip-
tion in the specification, and that “keyboardless” means that
the device does not require the use of a separate keyboard,
but that the claims do not exclude devices in which a sepa-
rate keyboard is present; that is, devices having an inte-
grated mechanical keyboard that need not be used because
of the touch screen. Typhoon points to the statement in the
specification that the device “requires reduced use of a
keyboard for entry of information and data,” ’057 patent, col.
2 ll. 27-28, and the statement that an external keyboard and
other peripherals may be “hooked up,” col. 2 ll. 59-61.
Typhoon states that the district court’s definition is more
restrictive than the definition in the specification.
11 TYPHOON TOUCH v. DELL INC
Typhoon argues that the specification shows that the
patentee ascribed a special meaning to “keyboardless,”
whereby the ordinary meaning “without a keyboard” does
not apply. Indeed, it is established that a claim term “will
not receive its ordinary meaning if the patentee acted as his
own lexicographer and clearly set forth a definition of the
disputed term in either the specification or the prosecution
history.” CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
1359, 1366 (Fed. Cir. 2002). Typhoon states that the clear
statement in the specification that mechanical keyboards
are not excluded, means that “keyboardless” does not ex-
clude a device having an integrated mechanical keyboard as
long as the device can operate without using the mechanical
keyboard. Typhoon argues that the specification says and
requires no more than that the device does not “require” a
mechanical keyboard, not that such a keyboard must be
absent.
The district court reviewed the specification, to deter-
mine the subject matter that the inventor described as the
invention. See Renishaw PLC v. Marposs Societa’ per Azi-
oni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (“Ultimately, the
interpretation to be given a term can only be determined
and confirmed with a full understanding of what the inven-
tors actually invented and intended to envelop with the
claim.”). The district court observed that the specification
criticizes mechanical keyboards as “viewed by many would-
be users as being laborious or tedious or requiring a skill
they have not mastered.” ’057 patent, col. 1 II. 59-67. The
specification states that the patented device may include a
“simulated keyboard,” ’057 patent, col. 2 II. 62, such as “a
keyboard that is produced on-screen,” col. 20 II. 9-10, and
discusses the convenience of on-screen operation for a
portable device. The specification explains that the user
may “key in the answer on the touch-screen, and then the
keyboard disappears until needed again.” Col. 20 II. 11-13.
TYPHOON TOUCH v. DELL INC 12
The district court observed that the patents describe no
device having a mechanically integrated keyboard, and
instead state that an external keyboard may be “hooked up.”
The court construed the claims accordingly, to exclude a
mechanically integrated keyboard although not excluding a
hooked up peripheral keyboard. The patent specification
distinguishes between integrated and peripheral keyboards,
and between mechanical and simulated keyboards. We
agree with the district court that “keyboardless” means
without an integrated mechanical keyboard, but accepts a
touch-screen keyboard or a hooked up peripheral keyboard.
It is clear from the specification that the inventor so in-
tended, and that the patent examiner so perceived the
claims. See Abbott Labs. v. Syntron Bioresearch, Inc., 334
F.3d 1343, 1354 (Fed. Cir. 2003) (the definition or usage of a
term that diverges from its ordinary or common meaning
must be done “with reasonable clarity, deliberateness, and
precision”).
Typhoon criticizes the district court for construing the
claims in order to target the accused devices and demon-
strate their non-infringement. It is not inappropriate for a
court to consider the accused devices when construing claim
terms, for the purpose of “claim construction” is to resolve
issues of infringement. See Pall Corp. v. Hemasure Inc., 181
F.3d 1305, 1308 (Fed. Cir. 1999) (“Although the construction
of the claim is independent of the device charged with
infringement, it is convenient for the court to concentrate on
those aspects of the claim whose relation to the accused
device is in dispute.”); Scripps Clinic & Research Found. v.
Genentech, Inc., 927 F.2d 1565, 1580 (Fed. Cir. 1991) (“In
‘claim construction’ the words of the claims are construed
independent of the accused product . . . . Of course the
particular accused product (or process) is kept in mind, for it
is efficient to focus on the construction of only the disputed
elements or limitations of the claims.”)
13 TYPHOON TOUCH v. DELL INC
The court’s construction of “keyboardless” is confirmed.
Stipulation of non-infringement
Typhoon stipulated that on the district court’s construc-
tion of the three terms discussed ante, Typhoon could not
prevail on its charges of infringement as to any defendant.
Stipulation for Entry of Final Judgment Based on the
Court’s Claim Construction, DKT # 456 (August 31, 2009).
We have sustained the construction of these terms, and
affirm the judgment of non-infringement.
“Means for cross-referencing”
The district court held that claims 11-12 of the ’057 pat-
ent are invalid, on the ground that the claim term “means
for cross-referencing said responses with one of said librar-
ies of said possible responses” is “indefinite.” Claim 8 of the
’362 patent was invalidated on the same ground. Section
112 ¶ 2 requires that the claims shall “particularly point[]
out and distinctly claim[] the subject matter which the
applicant regards as his invention.” Compliance with this
provision is determined as a matter of law, and receives
plenary review on appeal. Bancorp Servs., LLC v. Hartford
Life Ins. Co., 359 F.3d 1367, 1372 (Fed. Cir. 2004).
The “means for cross-referencing” term is in the statu-
tory form authorized by §112 ¶ 6, whose purpose is to allow
claiming of an element of an apparatus or a step of a method
in terms of the function performed by that element or step.
The statute provides that a claim may state the function of
the element or step, and the “means” covers the “structure,
material, or acts” set forth in the specification and equiva-
lents thereof. In turn, the specification must contain suffi-
cient descriptive text by which a person of skill in the field
of the invention would “know and understand what struc-
TYPHOON TOUCH v. DELL INC 14
ture corresponds to the means limitation.” Finisar Corp. v.
DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008); see
Biomedino LLC v. Waters Techs. Corp., 490 F.3d 946, 952
(Fed. Cir. 2007) (“[W]hile it is true that the patentee need
not disclose details of structures well known in the art, the
specification must nonetheless disclose some structure.”
(quoting Default Proof Credit Card Sys. v. Home Depot
U.S.A., Inc., 412 F.3d 1291, 1302 (Fed. Cir. 2005))).
Recognizing that patent claims are terse statements
based on the description in the specification, in S3 Inc. v.
Nvidia Corp., 259 F.3d 1364 (Fed. Cir. 2001), the court
reiterated that:
The requirement that the claims “particularly
point[] out and distinctly claim[]” the invention is
met when a person experienced in the field of the
invention would understand the scope of the subject
matter that is patented when the claim is read in
conjunction with the rest of the specification. “If the
claims when read in light of the specification rea-
sonably apprise those skilled in the art of the scope
of the invention, §112 demands no more.”
Id. at 1367 (quoting Miles Labs., Inc. v. Shandon, 997 F.2d
870, 875 (Fed. Cir. 1993)). Applying these principles, in
Atmel Corp. v. Info. Storage Devices, 198 F.3d 1374 (Fed.
Cir. 1999), the court explained the role of the specification in
functional claiming under §112 ¶ 6:
All one needs to do in order to obtain the benefit of
that claiming device is to recite some structure cor-
responding to the means in the specification, as the
statute states, so that one can readily ascertain
what the claim means and comply with the particu-
larity requirement of ¶ 2. The requirement of spe-
15 TYPHOON TOUCH v. DELL INC
cific structure in §112, ¶ 6 thus does not raise the
specter of an unending disclosure of what everyone
in the field knows that such a requirement in §112,
¶ 1 would entail.
Id. at 1382. The courts have applied these principles to the
claiming of computer-implemented functions, as illustrated
in Finisar, supra, and other cases. See, e.g., Source Search
Tech. LLC v. Lendingtree LLC, 588 F.3d 1063, 1076 (Fed.
Cir. 2009); Datamize LLC v. Plumtree Software, Inc., 413
F.3d 1342, 1347 (Fed. Cir. 2005).
The district court held that, as applied to the “means for
cross-referencing” function, the specification does not con-
tain an “algorithm” adequate to provide structure for this
function. The court cited Aristocrat Technologies Australia
PTY Ltd. v. International Game Technology, 521 F.3d 1328,
1334 (Fed Cir. 2008), for its holding that a means-plus-
function term is impermissibly indefinite under §112 ¶ 2
when the specification “simply describes the function to be
performed, not the algorithm by which it is performed.” On
this ground, the court held that the claim was fatally indefi-
nite. Typhoon argues that the specification contains ade-
quate algorithmic criteria, in conformity with precedent, to
perform the computer-implemented function. We agree that
precedent supports Typhoon’s position.
The usage “algorithm” in computer systems has broad
meaning, for it encompasses “in essence a series of instruc-
tions for the computer to follow,” In re Waldbaum, 457 F.2d
997, 998 (CCPA 1972), whether in mathematical formula, or
a word description of the procedure to be implemented by a
suitably programmed computer. The definition in Webster's
New Collegiate Dictionary (1976) is quoted in In re Free-
man, 573 F.2d 1237, 1245 (CCPA 1978): “a step-by-step
procedure for solving a problem or accomplishing some end.”
TYPHOON TOUCH v. DELL INC 16
In Freeman the court referred to “the term ‘algorithm’ as a
term of art in its broad sense, i.e., to identify a step-by-step
procedure for accomplishing a given result.” The court
observed that “[t]he preferred definition of ‘algorithm’ in the
computer art is: ‘A fixed step-by-step procedure for accom-
plishing a given result; usually a simplified procedure for
solving a complex problem, also a full statement of a finite
number of steps.’ C. Sippl & C. Sippl, Computer Dictionary
and Handbook (1972).” Id. at 1246.
Precedent and practice permit a patentee to express
that procedural algorithm “in any understandable terms
including as a mathematical formula, in prose, or as a flow
chart, or in any other manner that provides sufficient struc-
ture.” Finisar, 523 F.3d at 1340. In Finisar the court ex-
plained that the patent need only disclose sufficient
structure for a person of skill in the field to provide an
operative software program for the specified function. Id.
“The amount of detail required to be included in claims
depends on the particular invention and the prior art.”
Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758
F.2d 613, 624 (Fed. Cir. 1985). In turn, the amount of detail
that must be included in the specification depends on the
subject matter that is described and its role in the invention
as a whole, in view of the existing knowledge in the field of
the invention.
Typhoon states that the ‘057 and ‘362 patent specifica-
tions recite a four-step algorithm for computer-implemented
cross-referencing, starting with the entry of a response, then
a search for the entered response in a library of responses,
then determination whether a match exists in the library,
and then execution of an action if a match exists. Typhoon
states that this descriptive algorithm of the cross-
referencing function starts with the introduction of the
overall invention:
17 TYPHOON TOUCH v. DELL INC
Cross-referencing entails the matching of entered
responses with a library of possible responses, and,
if a match is encountered, displaying the fact of the
match, otherwise alerting the user, or displaying in-
formation stored in memory fields associated with
that library entry.
’057 patent, col. 3 ll. 43-48. In addition, in a section of the
specification headed “Cross Referencing,” the description is
elaborated:
Cross-Referencing imports that, for each answer
field, the entered response can be related to a li-
brary to determine if the response in the answer
field is existent in the library. In other words, the
answer information is cross-referenced against that
specific library. If it is available in that library,
then, corresponding to that library entry, an action
is executed. For instance, the associated action can
involve an overlay window that alerts the user of
the fact of the match with the library entry, or dis-
plays the contents of an information field stored in
association with that entry in the memory.
’057 patent, col. 14 l. 57 to col. 15 l. 4. Typhoon states that
this description contains sufficient algorithmic structure for
the routine programmatic procedures needed to provide
cross-referencing responses to inquiries. See Atmel, 198
F.3d at 1380 (“[O]ne must set forth in the specification an
adequate disclosure showing what is meant by the claim
language.” (quoting In re Donaldson, 16 F.3d 1189, 1195
(Fed. Cir. 1994))). The defendants have directed us to no
evidence that a programmer of ordinary skill in the field
would not understand how to implement this function.
TYPHOON TOUCH v. DELL INC 18
For computer-implemented procedures, the computer
code is not required to be included in the patent specifica-
tion. See Aristocrat Techs., 521 F.3d at 1338 (the patentee is
not “required to produce a listing of source code or a highly
detailed description of the algorithm to be used to achieve
the claimed functions in order to satisfy 35 U.S.C. §112 ¶
6”). A description of the function in words may “disclose, at
least to the satisfaction of one of ordinary skill in the art,
enough of an algorithm to provide the necessary structure
under §112, ¶ 6.” Finisar, 523 F.3d at 1340.
We agree with Typhoon that the term “means for cross-
referencing” is supported by the “structure, materials, or
acts” in the specification. The specification states that “the
memory of the portable computer stores a data collection
application and has locations for storing data entered
manually by touching the touch sensitive screen,” ’057
patent, col. 2 ll. 64-66, and that “[t]he CPU of the portable
computer executes the application and processes the manu-
ally entered data pursuant to the application,” ’057 patent,
col. 3 ll. 4-6. The patent recites that “[c]ross-referencing
entails the matching of entered responses with a library of
possible responses, and, if a match is encountered, display-
ing the fact of the match, otherwise alerting the user, or
displaying information stored in memory fields associated
with that library entry.” ’057 patent, col. 3 ll. 43-48. It is
not disputed that the steps are carried out by known com-
puter-implement operations, and are readily implemented
by persons of skill in computer programming. It appears
that the district court placed dispositive weight on Ty-
phoon’s statement that “the specific algorithm connoting the
structure of the means for cross-referencing element is not
explicitly disclosed in the specification,” for the court refers
to this “concession” in its opinion. Indeed, the mathematical
algorithm of the programmer is not included in the specifi-
cation. However, as precedent establishes, it suffices if the
19 TYPHOON TOUCH v. DELL INC
specification recites in prose the algorithm to be imple-
mented by the programmer.
The specifications state that cross-referencing entails
the steps of data entry, then storage of data in memory,
then the search in a library of responses, then the determi-
nation if a match exists, and then reporting action if a
match is found. The district court’s ruling that the term
“means for cross referencing” is indefinite and invalidates
the claims in which it appears is not in accordance with law.
The judgment of invalidity on this ground is reversed.
Each party shall bear its costs.
AFFIRMED-IN-PART, REVERSED-IN-PART