Patent claims generally include both structural and functional elements. Where a structural element is associated with a functional element, two types of association can be found:
- the structural element is merely required to possess the capability of performing the functional element – a claim with the first type of association generally recites phrases such as “adapted to”, “capable of …ing” or “operable to”; or
- the need for actual operation is strongly associated with the structural element – a claim with the second type of association generally recites “for …ing”.
The difference between these two types of association was established by following two landmark US judgments: Intel Corporation v US International Trade Commission (946 F 2d 821, Federal Circuit 1991) and Finjan, Inc v Secure Computing Corporation (626 F 3d 1197, Federal Circuit 2010).