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Biosig Heart Monitor Patent Not Indefinite

The Federal Circuit recently ruled that a Biosig Instruments Inc. heart rate monitor patent asserted against Nautilus Inc. is not indefinite.

The long-running case began in 2004, when Biosig sued Nautilus over the patent, which covers a device that can give a reading on a person’s heart rate while on a stationary bike, treadmill or other cardio machine.

The justices held the Federal Circuit’s old test that a patent is only invalid if it is “insolubly ambiguous” did not ensure that patents are definite and instead held a patent is indefinite if it fails to inform a person skilled in the art about the scope of the invention “with reasonable certainty.”

The case hinged on the meaning of the phrase “spaced relationship” between two electrodes in Biosig’s patent. The circuit court ruled that the phrase passed under the new test.

“The term ‘spaced relationship’ does not run afoul of the innovation-discouraging ‘zone of uncertainty’ against which [the Supreme Court] has warned, and to the contrary, informs a skilled artisan with reasonable certainty of the scope of the claim,” the court said.

Mark Harris of Proskauer Rose LLP, an attorney for Biosig, said the company was very pleased with the decision. “The Federal Circuit confirmed what we argued, which is that the patent is valid and definite and there is no problem with lack of clarity,” he said.

In addition, Harris said the justices recognized that the phrase “insolubly ambiguous” could be confusing to lower courts and the patent bar.

The Federal Circuit had always used “insolubly ambiguous” as a kind of shorthand for the type of analysis the Supreme Court called for to determine whether a person skilled in the art would understand the claims, Harris said. “This decision today confirms that all they were doing is getting rid of a confusing phrase and didn’t radically change course.”

John Vandenberg of Klarquist Sparkman LLP, an attorney for Nautilus, said that the company was evaluating the decision, but noted that there has only been a decision on indefiniteness, not on infringement or any other invalidity theory.

He said it was “unfortunate” that the Federal Circuit based its decision that the patent was reasonably clear in part on evidence presented during a re-examination of the patent 13 years after it was issued. The Supreme Court ruling made clear that the correct analysis is whether the patent would be clear to a skilled artisan at the time it was issued, he said.

After several re-examination proceedings the case resumed in 2010, and the district court judge granted summary judgment to Nautilus in 2012 that the patent was indefinite because it was not clear what was meant by a “spaced relationship” between the electrodes. The Federal Circuit reversed in 2013, holding that the patent was not insolubly ambiguous.

That led Nautilus to appeal to the Supreme Court, which held that the insolubly ambiguous test was unclear and “can leave courts and the patent bar at sea without a reliable compass.”

The Federal Circuit said that as a result of the high court’s ruling “we may now steer by the bright star of ‘reasonable certainty,’ rather than the unreliable compass of ‘insoluble ambiguity,’” but still concluded that Biosig’s patent was reasonably clear.

For more information, see Law360.

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