Federal Circuit: What Does "Unobtrusive" Mean? We Can't Tell.

Yesterday, in its decision in Interval Licensing LLC v AOL, Inc. et al. (full text here) the Federal Circuit upheld a ruling by the US District Court for the Western District of Washington holding Interval's claims invalid as indefinite.

Here's a claim that the Court described as "representative:"

A method for engaging the peripheral attention of a person in the vicinity of a display device, comprising the steps of

providing one or more sets of content data to a content display system associated with the display device and located entirely in the same physical location as the display device; 

providing to the content display system a set of instructions for enabling the content display system to selectively display, in an unobtrusive manner that does not distract a user of the display device or an apparatus associated with the display device from a primary interaction with the display device or apparatus, an image or images generated from a set of content data; and

auditing the display of sets of content data by the content display system;

wherein the one or more sets of content data are selected from a plurality of sets of content data, each set being provided by an associated content provider, wherein each associated content provider is located in a different physical location than at least one other content provider and each content provider provides its content data to the content display system independently of each other content provider and without the content data being aggregated at a common physical location remote from the content display system prior to being provided to the content display system, and wherein for each set the respective content provider may provide scheduling instructions tailored to the set of content data to control at least one of the duration, sequencing, and timing of the display of said image or images generated from the set of content data.

Yikes.

The Court focused on the highlighted limitation above, and particularly on the "unobtrusive" language.  Money quote:

We recognize that a patent which defines a claim phrase through examples may satisfy the definiteness requirement.  In this case, however, we decline to cull out a single "e.g." phrase from a lengthy written description to serve as the exclusive definition of a facially subjective claim term.

slip op. at 17-18; cites omitted.

Now, normally I would say that the USPTO must have had some understanding of what the term meant to allow the claim.  But in this instance, as the Court points out, at least three different interpretations of "unobtrusive" were adopted at different times by the patent Examiner, the applicants, and the Board.