In Interval Licensing LLC v. AOL, Inc. 13-1282, the Federal Circuit upheld a district court decision that Interval Licensing’s patent claims were invalid for indefiniteness. The claims of the patent were directed to a method for “engaging the peripheral attention of a person in the vicinity of a display device”. Interval Licensing’s suit alleged that AOL’s pop-up notifications infringed the patent. The test for indefiniteness recently set by the Supreme Court in Nautilus v. Biosig requires 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”.
The claims were held indefinite due to the use of the description “in an unobtrusive manner”. Judge Chen emphasized that the ruling does not declare that terms of degree are inherently indefinite. However, the claims must identify some form of meaningful objective boundaries to guide one of skill in the art as to the scope. Here the court found the boundaries to be too subjective, by resting on individual opinions.
source: Maier & Maier, PLLC
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