Interval Licensing LLC v. AOL, Inc. et al.

Docket No. 2013-1282, -1283, -1284, -1285

September 10, 2014

Brief Summary: Claim term of degree “unobtrusive manner” found indefinite (“highly subjective”, “considerable uncertainty”). DC claim construction findings modified based on specification and technical dictionaries.

Summary: Interval appealed final judgment of invalidity of claims of its US 6,034,652 and 6,788,314 for indefiniteness and non-infringment of others based on construction of the term “unobtrusive manner”. The patents relate to an “attention manager for occupying the peripheral attention of a person in the vicinity of a display device” by displaying an image in an “unobtrusive manner”. The opinion explained that a claim is invalid for indefiniteness “if its language, when read in light of the specification and the prosecution history, ‘fail[s] to inform, with reasonable certainty, those skilled in the art about the scope of the invention’” while “‘allow[ing] for a modicum of uncertainty’ to provide incentives for innovation” (citing Nautilus, SC 2014 (“insolubly ambiguous” and “amenable to construction” determined to be “more amorphous” than allowed by statute, although “‘absolute precision…[is] unattainable’”); since the filing dates were before new § 112(b) came into force, the decision relies upon the pre-AIA version of § 112). The disputed claim language here is the “term of degree…‘unobtrusive manner’”. The opinion explained that terms of degree are not “inherently indefinite” as long as “it provide[s] enough certainty…when read in the context of the invention” (Eibel, US 1923). In this case, the phrase was found to be “highly subjective” and the written description to be lacking and “…at best muddled, leaving one unsure of whether the ‘unobtrusive manner’ phrase has temporal dimensions as well as spatial dimensions (The hazy relationship between the claims and the written description fails to provide the clarity that the subjective claims need.”) And the prosecution history was found only to “reflect considerable uncertainty about which embodiments were tied to the ‘unobtrusive manner’ language.” The panel also “decline[d] to cull out a single ‘e.g.’ phrase from a lengthy written description to serve as the exclusive definition of a facially subjective claim term” (“Had the phrase been cast as a definition instead of as an example-if the phrase had been preceded by ‘i.e.’ instead of ‘e.g.’-then it would help provide the clarity that the specification lacks…we agree with the district court that a person of ordinary skill in the art would not understand the ‘e.g.’ phrase to constitute an exclusive definition….”) The claims including the term “unobtrusive manner” were therefore found indefinite. The FC panel also found the DC construction of “attention manager” to be too limiting in view of the specification and it modified the definition accordingly. The DC construed the “instructions” to refer to “a statement in a programming language that specifies a function to be performed by a system.” The FC panel concluded “in a programming language” should not be included because the DC definition was not consistent with the specification and technical dictionaries relied on by the DC “suggests a broader construction”. 

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