Copyright © 2017 ALM Media Properties, LLC. All Rights Reserved.
A patent is not addressed to lawyers, judges, or even the public generally, but to those experienced in the sciences of the invention. And, in the language of the sciences, any description that is sufficient to apprise those so experienced of the definite features of the invention, and to serve as a warning to others of what the patent’s claims cover, is sufficiently definite to sustain the patent. The Supreme Court said so over 100 years ago. But recently, those accused of infringing a patent are more frequently defending their actions by relying on the patent law statute requiring that patent claims be “definite” and pleading that the patent does not properly define the bounds of what actions constitute infringement. There may be instances where the defense has merit if only because the issue of infringement turns on the clarity of those bounds. But where that is arguably not the case, the defense is often colored with hyperbole about the poor quality of the Patent Office’s examination of the application and the Federal Circuit’s omniscient comprehension of the issued patent’s scope. It’s no surprise, therefore, that the Supreme Court will soon attempt to redefine “definiteness” in Nautilus v. Biosig.