Aaron Stiefel Discusses How Supreme Court May Alter Patent Indefiniteness Test in Law360

Law360 reports on the recent oral arguments before the Supreme Court in Nautilus Inc. v. Biosig Instruments Inc., a case that concerns the standard used by courts in determining whether a patent is invalid for indefiniteness. The standard currently applied by the Federal Circuit is that a patent is indefinite if it is "insolubly ambiguous" or "not amenable to construction." The parties and the Supreme Court justices apparently agreed that the Federal Circuit’s formulation sets too low a bar in terms of the definiteness required of patent claims. It remains to be seen, however, how the Supreme Court will adjust the standard.

According to Kaye Scholer Partner Aaron Stiefel, Co-Chair of the firm’s Intellectual Property Department, “It was clear that the ‘insolubly ambiguous’ test had little support and that the justices are searching for a new standard that is more workable without leaving many patents open to being found indefinite.”

"Everybody all around the room recognized that the current formulation may be too strong and is not likely to survive the Supreme Court," he said, noting that the court will likely "articulate a more centrist kind of standard."