Maybe it’s just me, but reading Markman rulings is sometimes a little like watching NASCAR. I’m only interested in the crashes. There are no doubt significant things happening when the Court adopts one party’s construction over the other, but without familiarity with the case it’s not immediately obvious how damaging the holding is. But as this case shows, to paraphrase Rob Lowe’s observation in a somewhat different context in About Last Night… with indefiniteness … you know. You know?
This is a Markman ruling that concluded that a claim term was indefinite. The Court set forth the current standards for such an argument before concluding that the term had been shown by clear and convincing evidence to be indefinite in light of the court’s other constructions. The opinion also addresses several times the argument that a claim term should be given its plain meaning, and provides a good set of examples for when this argument will be accepted.
This case is a little unusual in that the day before the Markman hearing the Federal Circuit affirmed another district court’s grant of summary judgment of indefiniteness based on construction of a single word. The Court asked for additional briefing, and after considering it, issued the attached opinion.
ANDA cases are not the most common bird locally, so it’s worth taking notice when a 160 page opinion containing 309 findings of fact and 89 conclusions of law rolls out the courthouse door, as happened the other day.
I’m working on a trio of cases today, all of which deal with claim construction. The first case includes – buried deep in a 117 page order a finding of indefiniteness with respect to a means-plus-function term that it worth analysis. Of course any opinion of that length will also have a wealth of useful standards that serve as a snapshot of what at least one court understands to be the law as of the end of January, in the year of our Lord 2018 (actually 2011 but once upon a time there was a monk that wasn’t so strong in math, and the rest is, literally, history).
This case came before the district court on objections from the magistrate judge’s ruling denying the defendant’s motion for summary judgment of indefiniteness. On appeal,