                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                        2007-1375


                ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD.,

                                                        Plaintiff-Appellant,

                                             v.


                              MULTIMEDIA GAMES, INC.,

                                                        Defendant-Appellee.


        Glenn K. Beaton, Gibson, Dunn & Crutcher LLP, of Denver, Colorado, argued for
plaintiff-appellant. With him on the brief were J. Gregory Whitehair and Stephen C.
McKenna.

       Charles A. Bird, Luce, Forward, Hamilton & Scripps LLP, of San Diego,
California, argued for defendant-appellee. With him on the brief was Callie A.
Bjurstrom.

Appealed from: United States District Court for the Central District of California.

Judge George P. Schiavelli
                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                       2007-1375



               ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD.,

                                                 Plaintiff-Appellant,

                                            v.

                             MULTIMEDIA GAMES, INC.,

                                                 Defendant-Appellee.


      Appeal from the United States District Court for the Central District of
      California in Case No. 05-CV-0679, Judge George P. Schiavelli.


                             _______________________

                             DECIDED: February 22, 2008
                              _______________________



Before LOURIE, SCHALL, and BRYSON, Circuit Judges.

LOURIE, Circuit Judge.

      Aristocrat Technologies Australia Pty Ltd. (“Aristocrat”) appeals from the order of

the United States District Court for the Central District of California entering summary

judgment of invalidity for indefiniteness of U.S. Patent 4,817,951 (“the ’951 patent”) in

favor of Multimedia Games, Inc. (“Multimedia”).      Because the district court erred in

construing the claims at summary judgment while genuine issues of material fact
remained pertinent to such construction, we reverse the district court’s order and

remand for further proceedings in accordance with this opinion.

                                       BACKGROUND

       On January 27, 2005, Aristocrat sued Multimedia for infringement of the ’951

patent. The ’951 patent is entitled “Player Operable Lottery Machine Having Display

Means Displaying Combinations of Game Result Indicia,” and describes and claims a

machine similar to a slot machine that provides a paperless version of an instant lottery.

At the start of a new lottery series, the controller retrieves a table of all the possible

results for that series and then assigns each result to a random location in a block of

memory, thereby creating a randomly ordered list of the game results. Each time a

player deposits the required coins and pulls the lever to purchase a pseudo-ticket for

the lottery, the next result in order on the list is retrieved, a display corresponding to the

result is generated on the reels or other display, and, if a payout has been assigned for

that result, the controller dispenses the coins corresponding to the assigned payout to

the player or credits the amount toward further play. This process is repeated until the

end of the list is reached (i.e., all tickets for that series have been purchased). The

process is then repeated for another lottery series that may optionally be based upon a

different table of possible results.

       Claim 1, the only independent claim of the ’951 patent, reads as follows:

       A player operable instant lottery machine, comprising display means,
       control means to control the operation of the display means, and initiation
       means operable by a player to cause the control means to select and
       display a new result on the display means,
       said display means comprising means to simultaneously display several
           indicia in combination, said indicia being selected from a
           predetermined set of indicia and said combination being selected from
           a predetermined set of combinations of said indicia,



2007-1375                                    -2-
      the control means including storage means for storing an ordered set of
         numbered game results representing a set of pseudo tickets of a
         lottery game series which is currently in progress, random number
         selection means for generating game results for said ordered set of
         game results and means for storing the ordered set in the storage
         means at the commencement of each said game series, means for
         sequentially selecting a next game result from the ordered set in the
         order in which they are stored in response to operation of the initiating
         means and means for displaying a combination of indicia
         corresponding to the currently selected game result.

(Emphases added.)

       Multimedia filed a motion for summary judgment arguing that claim 1 was invalid

for indefiniteness because the specification of the patent failed to disclose necessary

structure corresponding to several of the means-plus-function limitations. The district

court agreed with Multimedia and concluded that the claims were invalid as indefinite.

The court identified six claim limitations that lacked corresponding structure in the

specification: “control means”; “storage means”; “random number selection means”;

“means for storing”; “means for sequentially selecting”; and “means for displaying.” The

court concluded that because a person of ordinary skill in the art could not identify

structure corresponding to the functions to be performed by the recited means, such a

person could not determine the meaning of the claims.

      Aristocrat timely appealed.        We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(1).

                                       DISCUSSION

       Aristocrat argues that the first disputed claim limitation, “control means,” is not a

means-plus-function limitation because the elements that make up the “control means”

in claim 1 are sufficient to define its structure without resort to the specification. On the

other hand, Aristocrat argues that even if “control means” is a means-plus-function



2007-1375                                    -3-
limitation, it clearly corresponds to the “controller” described in the specification—a term

that persons of ordinary skill in the art would understand to be a microprocessor or other

similar computerized control device based both on the term itself and the way that the

controller is described in the specification. Aristocrat asserts that the “storage means” is

clearly associated with the “memory” described in the specification and that the term

“memory” identifies sufficient structure for the means, particularly because the

specification shows the memory to be a part of the “controller” that has already been

identified as a microprocessor. Aristocrat also argues that the specification describes

the “random number selection means” as a “pseudo-random number generating

algorithm.” Similarly, Aristocrat states that “means for storing,” “means for sequentially

selecting,” and “means for displaying” are simply portions of the programming for the

microprocessor controller that perform the associated functions.

       Multimedia responds that subsidiary limitations that are themselves means-plus-

function limitations cannot constitute sufficient structure to rebut the presumption that

“control means” is a means-plus-function limitation.         Multimedia also argues that

nowhere in the specification is the “controller” identified as a microprocessor and that

the term “memory” is too general to identify structure to a person of ordinary skill in the

art. Multimedia adds that it is necessary for the specification to disclose at least a single

algorithm for implementing the “pseudo-random number generating algorithm” in order

to avoid indefiniteness.      As for the final three means-plus-function limitations,

Multimedia asserts simply that there is no structure in the specification associated with

the stated functions.




2007-1375                                    -4-
       We review claim construction de novo on appeal. Cybor Corp. v. FAS Tech.,

Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). “We likewise review the district

court's grant of summary judgment de novo, reapplying the standards applied by the

district court.” U.S. Philips Corp. v. Iwasaki Elec. Co. Ltd., 505 F.3d 1371, 1374 (Fed.

Cir. 2007). “Claim construction of a means-plus-function limitation includes two steps.

First, the court must determine the claimed function. Second, the court must identify the

corresponding structure in the written description of the patent that performs that

function.” Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 (Fed.

Cir. 2006) (citations omitted). “The review of indefiniteness under 35 U.S.C. § 112,

paragraph 2, proceeds as a question of law without deference.” SmithKline Beecham

Corp. v. Apotex Corp., 403 F.3d 1331, 1338 (Fed. Cir. 2005).

       We conclude that genuine issues of material fact exist concerning whether one

skilled in the art of computer programming would identify structure in the specification

associated with the various asserted claim limitations, thereby precluding summary

judgment, and we thus reverse the district court’s summary judgment order. While we

leave the district court to construe the disputed claim terms upon remand after the

opportunity to hear any relevant testimony or evidence, we provide the following

guidance to aid the court in its deliberations.

       First, we agree with the district court that the “control means” limitation should be

construed as a means-plus-function limitation.      A presumption applies that a claim

limitation that includes the word “means” is intended to invoke means-plus-function

treatment. Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1302 (Fed. Cir. 1999).

However, that presumption may be rebutted (1) if the claim limitation recites no function




2007-1375                                    -5-
corresponding to the means or (2) if the claim limitation itself recites sufficient structure

for performing the recited function. Id.; see also York Products, Inc. v. Cent. Tractor

Farm & Family Ctr., 99 F.3d 1568, 1576 (Fed. Cir. 1996) (“Without a ‘means’ sufficiently

connected to a recited function, the presumption in use of the word ‘means’ does not

operate.”); Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed. Cir. 1996) (concluding

that “perforation means . . . for tearing” was not a means-plus-function limitation

because perforations were the structure for accomplishing the tearing function). While

Aristocrat does not argue here that the claim recites no function corresponding to the

control means, neither does Aristocrat argue that the clause “control means” alone

recites sufficient structure to rebut the presumption.        It does argue that the five

subsidiary means-plus-function limitations do recite sufficient structure to rebut the

presumption that “control means” is a means-plus-function limitation. We disagree.

       The means-plus-function limitations subsidiary to the “control means” do not

recite sufficient structure to remove the “control means” limitation from the ambit of 35

U.S.C. § 112, ¶ 6. While we do not agree with the apparent argument by Multimedia

that subsidiary means-plus-function limitations can never define sufficient structure to

rebut the presumption concerning means-plus-function treatment of a parent clause on

the ground that they only recite additional functions, nonetheless, even if we were to

assume that structures argued by Aristocrat for each of the subsidiary limitations

(memory for the “storage means” and programming or software for the other limitations)

are described in the specification, the structure of the “control means” would still not be

sufficiently defined. That is because a combination of memory and programming does

not adequately describe a microprocessor or other structure for performing the claimed




2007-1375                                    -6-
functions of the “control means”—controlling the operation of the display means,

responding to the initiation means, selecting and displaying a new result, etc. The

structure of a parent means clause must be disclosed in terms of the functions that the

claim states the means performs. Here, it is not clear that the structures allegedly

associated with the subsidiary means as a whole are capable of performing all of the

functions associated with the parent means. However, under different circumstances it

may be possible that once identified, structures corresponding to the subsidiary means-

plus-function limitations may as a whole sufficiently recite the structure for performing

the superior function such that resort to the specification for further corresponding

structure is not necessary. Because that is not the case here, we conclude that the

presumption of means-plus-function treatment applies, and “control means” should be

construed as a means-plus-function limitation subject to having structural support in the

specification.

       Having concluded that “control means” is an independent means-plus-function

limitation that must stand on its own merits, we must still determine whether it is

supported by sufficient structure in the specification before turning further to evaluate

the subsidiary limitations on their own. Aristocrat argues that the function of the control

means is performed by the “controller” in the specification and that a person of ordinary

skill in the art would readily identify a “controller” in the context of this patent as a

microprocessor. We do not know if that is the case, and the district court did not decide

that question. But what is clear is that the specification must disclose some structure for

a means-plus-function limitation. See Default Proof Credit Card Sys., Inc. v. Home

Depot U.S.A., Inc., 412 F.3d 1291, 1302 (Fed. Cir. 2005) (“In sum, while it is true that




2007-1375                                   -7-
the patentee need not disclose details of structures well known in the art, the

specification must nonetheless disclose some structure.             Stated differently, the

testimony of one of ordinary skill in the art cannot supplant the total absence of structure

from the specification.”) (citation omitted); In re Donaldson Co., Inc., 16 F.3d 1189, 1195

(Fed. Cir. 1994) (en banc) (“[I]f one employs means-plus-function language in a claim,

one must set forth in the specification an adequate disclosure showing what is meant by

that language.”). Whether a specification discloses adequate structure corresponding to

a means-plus-function limitation is determined from the viewpoint of one of ordinary skill

in the art: “[I]t is well-established that the determination whether a claim is invalid as

indefinite ‘depends on whether those skilled in the art would understand the scope of

the claim when the claim is read in light of the specification.’” Atmel Corp. v. Info.

Storage Devices, Inc., 198 F.3d 1374, 1378 (Fed. Cir. 1999) (quoting N. Am. Vaccine,

Inc. v. Am. Cyanamid Co., 7 F.3d 1571, 1579, (Fed. Cir. 1993)). That is what needs to

be established by evidence on remand.

       The law does not require that structure be explicitly identified as long as a person

of ordinary skill in the art would understand what structure is identified in the

specification. See Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1380

(Fed. Cir. 1999) (quoting with approval a proposed Supplemental Examiner Guideline

stating that the “written description does not have to explicitly describe the structure . . .

corresponding to a means(or step-) plus-function limitation to particularly point out and

distinctly claim the invention as required by 35 U.S.C. 112 ¶ 2”). We have held that a

computer was the intended structure even when it was not expressly recited.               For

example, in In re Dossel, 115 F.3d 942, 946-47 (Fed. Cir. 1997), we concluded that




2007-1375                                    -8-
although the specification did not use the “magic word ‘computer,’” a general or special

purpose computer was clearly the structure intended to “receive[] digital data, perform[]

complex mathematical computations and output[] the results to a display.” See also,

Creo Products, Inc. v. Presstek, Inc., 305 F.3d 1337, 1347 (Fed. Cir. 2002) (“Under our

case law interpreting § 112, ¶ 6, knowledge of one skilled in the art can be called upon

to flesh out a particular structural reference in the specification for the purpose of

satisfying the statutory requirement of definiteness.”). However, because it is not clear

from the record that the present case is a Dossel situation, where the specification

showed that a computer was clearly intended to be the means performing the claimed

function, we will leave that determination to the district court upon remand.

       Thus, the district court will need to define the relevant art and the level of

ordinary skill in that art. Then, it will be presented upon remand with two questions in

construing the limitation “control means.” First, would a person of ordinary skill in the art

understand the word “controller” alone in the context of this invention to refer to a

particular structure, such as a microprocessor; if the answer is “yes,” further inquiry into

additional details of the specification is unnecessary because there would be adequate

structure in the specification. Second, if the answer to the first question is “no,” one

must ask whether a person of ordinary skill in the art would understand the word

“controller” in the context of other statements and description in the specification to

identify a particular structure, in which case, again, there would be adequate structure

and the claim would not be indefinite. The district court might consider whether the

controller must include writable memory that is capable of storing the randomly ordered

set of game results and be capable of using a pseudo-random number generating




2007-1375                                    -9-
algorithm. In considering these questions, the court should consider how the reference

to the use of “pointers” in the procedure of Figure 5 impacts the way in which a person

of ordinary skill in the art would understand the term controller in the context of this

specification. The expert testimony cited by the parties thus far, however, was too

generalized and insufficiently focused on such specific questions in order to be relied

upon for summary judgment.

       The district court will also need to evaluate the subsidiary means clauses in the

same manner. However, if the district court concludes that the structure of the “control

means” is adequately identified in the specification, the identified structure will aid in the

construction of the remaining claim terms because the organization of claim 1 requires

that the structure of each of the subsidiary means-plus-function limitations must be a

subset or part of the structure corresponding to the “control means.” Thus, higher level

structure leads to subsidiary structure. For example, if the district court concludes that

the “control means” corresponds to a microprocessor as urged by Aristocrat,

construction of the “storage means” will be a straightforward matter as the parties

already agree that the “storage means” refers to the “memory” in the specification and

computer or microprocessor memory is a generally known structure.

       However, Multimedia argues that even if the “random number selection means”

corresponds to a “pseudo-random number generating algorithm,” that limitation is still

indefinite because the specifics of that algorithm are not disclosed in the specification.

Multimedia seemingly urges that WMS Gaming, Inc. v. International Game Technology,

184 F.3d 1339 (Fed. Cir. 1999), stands for the rule that when a general purpose

microprocessor or computer is the structure corresponding to a recited function, a




2007-1375                                   -10-
specific algorithm for performing that function must be disclosed in order to avoid

indefiniteness, and, by extension, a specific random number algorithm must be

disclosed here. WMS Gaming, however, does not require that a particular algorithm be

identified if the selection of the algorithm or group of algorithms needed to perform the

function in question would be readily apparent to a person of skill in the art.      For

example, in Dossel, we found that the claim limitations “means for reconstructing the

current distributions of the volume elements which are situated on said surfaces on the

basis of said measured values” and “reconstruction means for determining the current

distributions at said predetermined volume locations from said stored values” were not

indefinite because, “[w]hile the written description d[id] not disclose exactly what

mathematical algorithm w[ould] be used to compute the end result, it d[id] state that

‘known algorithms’ c[ould] be used to solve standard equations which are known in the

art.” 115 F.3d at 946.

      Similarly, in Medical Instrumentation, although we concluded that a box labeled

“Image Format Conversion” in one of the patent figures could not “serve to clearly link

software as a corresponding structure for the function of converting the images into a

selected format,” we also concluded that “there would be no need for a disclosure of the

specific program code if software were linked to the converting function and one skilled

in the art would know the kind of program to use.” 344 F.3d at 1213-14. Thus, if the

district court concludes on remand that a controller is synonymous with a

microprocessor and that a person of skill in the art would readily appreciate the type of

algorithm necessary to perform the pseudo-random number generating function, the

primary focus for purposes of construing “random number selection means” and the




2007-1375                                 -11-
final three claim terms in dispute, “means for storing,” “means for sequentially

selecting,” and “means for displaying,” will be whether algorithms needed to perform

those functions are readily apparent to a person of skill in the art or are disclosed in the

specification.

                                      CONCLUSION

       For the foregoing reasons, we reverse the district court’s entry of summary

judgment of invalidity of the ’951 patent and remand for further proceedings in

accordance with this opinion.

                             REVERSED AND REMANDED




2007-1375                                  -12-
