Dow And Teva: Indefiniteness Defense Can Be Powerful

Law360, New York (October 28, 2015, 10:28 AM EDT) -- In 2014, the U.S. Supreme Court in Nautilus Inc. v. Biosig Instruments Inc.[1] overturned the Federal Circuit’s fundamental patent doctrine that a claim is definite when it is “amenable to construction” and, as construed, is not “insolubly ambiguous,” imposing the new standard that “a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.”

The Federal Circuit’s recent decisions in The Dow Chemical Company v. Nova Chemicals Corporation (Canada) (Fed. Cir. Aug. 28,...

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