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Section 112 Indefiniteness Is Still a “Lofty” Invalidity Attack

Jason Whitney, Counsel, Haynes and Boone, LLP After the U.S. Supreme Court tightened the requirements of 35 U.S.C. Section 112 in Nautilus, Inc. v. Biosig Instruments, Inc. by holding that claims must describe “the scope of the invention with reasonable certainty,”[1] some envisioned the possibility of a reinvigorated indefiniteness standard standing as a bulwark against overly broad or vaguely drafted patent claims. Indeed, just months after Nautilus, the Court of Appeals for the Federal Circuit hinted at such a future with Interval Licensing LLC v. AOL, Inc., which established the rule that terms of degree “must provide objective boundaries” for claimed inventions.[2] But as the Federal Circuit has continued to define the contours of Nautilus over the following years, indefiniteness attacks have met uneven success and produced inconsistent application of Section 112. The Federal Circuit’s recent opinion in Guangdong Alison Hi-Tech Co. v. ITC,[3] which examined the term of degree… Continue Reading

October 2019
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