Judge Plager troubled with Federal Circuit’s “Indefiniteness” law

On the heels of the Ariad v. Eli Lilly en banc case which dealt with the issue of “written description” under 35 USC §112, the Federal Circuit has now issued several decisions dealing with “indefiniteness” under 35 USC §112.  One of those cases is Enzo v. Applera, 2009-1381 (Fed. Cir. Mar. 26, 2010).

In the oral argument of Enzo, Judge Plager expressed some frustration with the Federal Circuit’s current law on the issue of indefiniteness: [Listen].

You can read the court’s opinion here: [Read].

You can listen to the entire oral argument here:  [Listen].

Judge Plager was the author of the “nose of wax” line from Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553 (Fed. Cir. 1995) in which he stated:

Claim drafting is itself an art, an art on which the entire patent system today depends.  The language through which claims are expressed is not a nose of wax to be pushed and shoved into a form that pleases and that produces a particular result a court may desire.  The public generally, and in particular, the patentees’ competitors, are entitled to clear and specific notice of what the inventor claims as his invention.  That is not an easy assignment for those who draft claims, but the law requires it, and our duty demands that we enforce the requirement.  There is no room in patent claim interpretation for the equivalent of the cy pres doctrine; that would leave the claiming process too indefinite to serve the purposes which lie at the heart of the patent system.

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