Federal Circuit Holds Biosig’s Patent Not Indefinite Under New Standard
Applying the Supreme Court’s new “reasonable certainty” standard for patent definiteness in Biosig Instruments, Inc. v. Nautilus, Inc. (2015) (Nautilus III), the Federal Circuit again held that Biosig’s patent for a heart rate monitor is not indefinite. In Nautilus II (2014), the Supreme Court rejected the Federal Circuit’s “insolubly ambiguous” standard for indefiniteness, but did not determine whether Biosig’s patent was indefinite.
Biosig argued that “reasonable certainty” “is not a new standard; it is the degree of clarity in patent claiming that has governed for nearly one hundred years.” And the Federal Circuit appears to have agreed, calling “reasonable certainty” a “familiar standard”; “the core of much of the common law.” The court noted that judges “have had no problem operating under the reasonable certainty standard,” since the Supreme Court’s decision. The court quoted Judge Bryson, sitting by designation in Texas: “Indefiniteness is a legal determination; if the court concludes that a person of ordinary skill in the art, with the aid of the specification, would understand what is claimed, the claim is not indefinite.” The court concluded that Biosig’s claims inform a skilled artisan with reasonable certainty and are therefore not indefinite.
The Federal Circuit applied the Supreme Court’s new claim construction rule in Teva v. Sandoz (2015) (addressed here). The district court considered some extrinsic evidence during claim construction, which could have resulted in a “clear error” review. But because “a skilled artisan would understand the inherent parameters of the invention as provided in the intrinsic evidence” (emphasis added) the court reviewed the claim construction de novo, reversing the district court.
At least at the Federal Circuit, the Supreme Court’s Nautilus decision may not have the impact some thought it might. It remains to be seen what effect it will have on district court proceedings.