Indefiniteness Since Nautilus: Not A Big Deal?

An article published today in the New York Law Journal looks at decisions relating to the "idefiniteness" standard since the Supreme Court's decision last June in Nautlius v Biosig.  (572 U.S. __, 2014).  

You'll recall that the Supreme Court chucked out the Federal Circuit's "insolubly ambiguous" standard in favor of a new rule:  "that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty."

Much clearer, right? 

Anyway, according to the article,  a number of courts have applied the "new" standard since June, and most of the time, they're not having trouble figuring out what claims mean.

...In Hand Held Prods. v. Amazon.com, C.A. No. 12-768-RGA-MPT, 2014 BL 175317 (D. Del., June 24, 2014), Magistrate Judge Mary Pat Thynge found that the defendant in that case had failed to prove by clear and convincing evidence that certain terms, such as "bar-coded information" and "bar-code readable information," are indefinite. In reaching this conclusion, the court specifically noted in several instances that the defendant had provided "no expert testimony in support of its indefiniteness argument," and instead relied on attorney argument. In Endo Pharm. v. Watson Labs., Case No. 2:13-CV-192-JRG, 2014 BL 173773 (E.D. Tex., June 23, 2014), Judge Rodney Gilstrap rejected the contention that certain terms, such as "with increased penetration" and "reducing inflammation" which defendant considered to be "words of degree," were indefinite. In Augme Techs. v. Yahoo!, No. 2013-1121, 2014 BL 171920 (Fed. Cir., June 20, 2014), a panel of the Federal Circuit rejected a contention that the term "receiving, by an ingest server, the unique identifier to the digital content," was indefinite. Citing the standard in Nautilus, the court stated that this term "is clear on its face and unquestionably meets this standard." And in Purdue Pharm. Prods. v. Actavis Elizabeth, No. 12-5311 (JLL), 2014 BL 162761 (D.N.J., June 11, 2014), Judge Jose L. Linares disagreed with defendant's argument that the term "without residual sedative effects" was indefinite because the patent failed to identify which of several methods disclosed in the specification for determining whether a person taking zolpidem wakes up "without residual side effects" governs.

We'll have to wait to see what the Federal Circuit does with Nautilus on remand, but in the meantime, District Courts are not treating this like a directive from the Supreme Court to strike down claims as indefinite.