Kyle Musgrove in Law360: High Court Could Declare Open Season On Vague Patents


The U.S. Supreme Court will hear oral arguments Monday in a case that could make it easier to render patents with vague language invalid as indefinite, a move that would provide a new weapon against so-called patent trolls but may put a wide range of patents at risk, attorneys say.

The justices agreed in January to hear an appeal by Nautilus Inc., which argues that the Federal Circuit's standard that patents are not invalid as indefinite unless they are "insolubly ambiguous" makes it too hard to invalidate patents with vague or confusing claims. Nautilus' position has found support from Google Inc. and others, which argue that the court should require greater clarity in patent claims in order to combat frivolous suits by nonpracticing entities, which they say often sue technology companies over vague software patents...

The insolubly ambiguous standard is widely expected to be jettisoned by the high court since it "frankly isn't really supported by anyone," said Kyle Musgrove of Haynes and Boone, LLP. But it remains to be seen what the justices would put in its place.

The current test requires a party alleging that a patent is indefinite to effectively argue that there is no reasonable way to interpret the claims. That isn't a position many litigants want to be in, since the patent owner will always argue that there is some reasonable interpretation, Musgrove said.

Excerpted from Law360, April 23, 2014. To view full article, click here (subscription required).

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