N.D. Ga. Rejects Indefiniteness Argument under Nautilus v. Biosig

Was Nautilus much ado about nothing? In the wake of the Supreme Court's June decision in Nautilus, Inc. v. Biosig Instruments, Inc., many have speculated as to whether the Court's new formulation of the indefiniteness test would have significant impact. One early data point suggests Nautilus's impact may be limited.

In Wonderland Nurserygoods Co., Ltd. v. Kids II, Inc., Chief Judge Thomas W. Thrash, Jr. recently denied Kids II's motion to reconsider his previous Markman ruling. In the earlier ruling, the court rejected Kids II's indefiniteness challenge, finding the patent claims not "insolubly ambiguous," under the Federal Circuit's then-governing standard.

The disputed patent claims a baby playpen with inner columns and outer columns, where the outer wall of the pen threads between the inner and outer columns. The supposedly indefinite limitation is "a distance between the two second columns [that is] larger than between the two first columns." Kids II argued that a skilled artisan cannot be reasonably certain how to measure that "distance between" because the claim is ambiguous as to which columns to use in measuring that distance. Using the illustration below, Kids II argued that one would not know whether to judge the distance between corners A and B, A and C, or A and D. The specification explains that the claimed distance is that between "opposite" columns. Kids II argued that all of corners B, C, and D are "opposite" from corner A, meaning a skilled artisan could not be reasonably certain about the claim scope.

Chief Judge Thrash was not persuaded, even under Nautilus's "reasonable certainty" standard. Emphasizing both the specification and the surrounding claim language, the court concluded that a skilled artisan would understand "opposite" to mean "diagonal." Thus, the court held that the "distance between" must be measured between columns diagonally across the playpen, and the claim is not indefinite.