The Court of Appeals for the Federal Circuit, in Dyfan, LLC v. Target Corp., Case No. 21-1725 (Fed. Cir. Mar. 24, 2022), reversed the district courts’ determination that 35 U.S.C. § 112 ¶ 6 applied to the terms “code” and “application.” The CAFC found that the limitations did not invoke 35 U.S.C. § 112 ¶ 6 because the limitations did not recite the word “means,” and the terms at issue are not nonce word equivalents because a person of ordinary skill in the art would have understood the words to connotate structure such as off-the-shelf software. The CAFC articulated that “poor claim drafting does not allow courts to bypass the presumption that a claim does not invoke § 112¶ 6 in the absence of the word “means.” Instead, the onus is on the challenger to prove by a preponderance of the evidence that the terms do not connote structure.
Opinion can be found here: https://cafc.uscourts.gov/opinions-orders/21-1725.OPINION.3-24-2022_1926111.pdf