appeal no. 2012-1289 united states court of appeals · 2014-09-05 · appeal no. 2012-1289 united...
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Appeal No. 2012-1289
United States Court of Appeals for the
Federal Circuit
BIOSIG INSTRUMENTS, INC.,
Plaintiff-Appellant,
– v. –
NAUTILUS, INC.,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CASE NO. 10-CV-7722,
JUDGE ALVIN K. HELLERSTEIN
PLAINTIFF-APPELLANT’S SUPPLEMENTAL RESPONSE BRIEF ON REMAND
DANIEL C. MULVENY KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, Pennsylvania 19087 (610) 667-7706
MARK D. HARRIS PROSKAUER ROSE LLP 11 Times Square New York, New York 10036 (212) 969-3000 JOHN E. ROBERTS PROSKAUER ROSE LLP One International Place Boston, Massachusetts 02110 (617) 526-9600
Counsel for Plaintiff-Appellant Biosig Instruments, Inc.
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
PRELIMINARY STATEMENT ............................................................................... 1
ARGUMENT ............................................................................................................. 3
I. The Supreme Court’s Decision in Nautilus II Does Not Require This Court to Reassess Biosig’s Patent ................................... 3
II. Nautilus Relies Exclusively on “Post Hoc” Legal Argument ............... 9
III. Policy Rationales Cannot Justify Invalidating the ’753 Patent ........... 13
CONCLUSION ........................................................................................................ 17
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TABLE OF AUTHORITIES
Page(s)
Cases:
Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed. Cir. 2013) ................................................................passim
Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403 (1902)....................................................................................... 11
General Electric Co. v. Wabash Appliance Corp., 304 U.S. 364 (1938)................................................................................. 12, 13
Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ............................................................................passim
PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299 (Fed. Cir. 2008) ....................................................................... 5
United Carbon Co. v. Binney & Smith Co., 317 U.S. 228 (1942)......................................................................................... 5
Other Authorities:
Joseph E. Root, Rules of Patent Drafting (2011) .................................................... 14
Robert C. Faber, Faber on Mechanics of Patent Claim Drafting § 10:8:1 (6th ed. 2013) ................................................................................................. 14
Stephen A. Becker, Patent Applications Handbook § 2:9 (2013) ........................... 14
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PRELIMINARY STATEMENT
Despite this Court’s directive, Nautilus devotes little space to discussing the
impact of the Supreme Court’s decision on this case. See Nautilus, Inc. v. Biosig
Instruments, Inc., 134 S. Ct. 2120 (2014) (“Nautilus II”). Instead, Nautilus prefers
to rehash a series of arguments that this Court squarely rejected the last time
around. That cursory treatment is unsurprising, as the Supreme Court’s decision
changed little about how this Court should approach the definiteness inquiry. The
main lesson from Nautilus II is that definiteness must be analyzed from the
perspective of the skilled artisan at the time of patenting, rather than that of a court
viewing the patent “post hoc.” Nautilus II, 134 S. Ct. at 2130. Since this Court
already espoused the skilled artisan’s viewpoint at the appropriate time in its
previous analysis, Nautilus II in no way undermines the Court’s prior
determination. See Biosig Instruments, Inc. v. Nautilus, Inc., 715 F.3d 891 (Fed.
Cir. 2013) (“Nautilus I”)
If anything, this Court’s conclusion in Nautilus I is on solider footing
following Nautilus II. Nautilus’s sole support for its position on indefiniteness
comes from speculation and supposition by lawyers, many years after the fact,
about what a skilled artisan might have thought. After Nautilus II, that kind of
argumentation is unsustainable, particularly when the record is replete with
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unrebutted expert evidence showing that a skilled artisan would have understood
the metes and bounds of the ’753 patent.
Bereft of evidentiary support for its position, Nautilus resorts to broad policy
arguments divorced from the facts of the case. With the benefit of some twenty
years’ hindsight, Nautilus contends that the patent could have been drafted in a
clearer fashion, and therefore should be invalidated. It also advocates invalidation
as a way to send a message to patent owners who might be tempted to draft
deliberately ambiguous claims. Neither of those reasons supports the result
Nautilus wants.
The Supreme Court forbids the very approach that Nautilus promotes in its
policy arguments. Nautilus’s complaint that Claim 1 could have been drafted more
exactly cannot be the standard to judge definiteness because “absolute precision”
in claiming is “unattainable.” Nautilus II, 134 S. Ct. at 2129. Its other policy
theory fails because Nautilus has failed to provide any proof that a skilled artisan
would find Claim 1 to be indefinite in the first instance. It sends quite the wrong
message to patent owners to deem a patent claim indefinite, where the only true
evidence shows that skilled artisans knew what it meant.
Accordingly, as this Court previously concluded, and in accord with the
standard articulated by the Supreme Court, the ’753 patent informed a skilled
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artisan of the bounds of the invention with reasonable certainty at the time of
filing. The district court’s holding of indefiniteness should therefore be reversed.
ARGUMENT
I. The Supreme Court’s Decision in Nautilus II Does Not Require This Court to Reassess Biosig’s Patent
Nautilus is incorrect that the Supreme Court’s decision in Nautilus II
requires this Court to perform “a different and less forgiving” evaluation of the
’753 patent. (Naut. Supp. Br. 8.) The only aspect of this Court’s previous
formulation for definiteness that the Supreme Court rejected was its invocation of
the phrases “insolubly ambiguous” and “amenable to construction.” See Nautilus
II, 134 S. Ct. at 2130. As Biosig has demonstrated, although this Panel mentioned
those phrases, its decision in no way turned on them. (See Biosig Supp. Br. 7-9.)
Rather, the Panel properly viewed Claim 1 from the perspective of a skilled artisan
at the time of patenting, and considered whether the claim language provided such
an artisan with reasonable notice of the patent’s bounds, just as the Supreme Court
has demanded. The mere inclusion of two now-disapproved phrases does not
undermine in any way the validity of this Court’s analysis in Nautilus I.
Nautilus makes three attempts to explain why this Court’s analysis in
Nautilus I is purportedly at odds with Nautilus II. (See Naut. Supp. Br. 12-13.)
None is persuasive.
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First, this Court did not apply the “wrong standard” in Nautilus I. (Id. at 12
(emphasis omitted).) Rather, this Court correctly considered whether a skilled
artisan reading Claim 1 in light of the specification and prosecution history would
understand the bounds of the claimed invention. The majority explicitly
considered whether the claim language—not a judicial construction of that
language (id.)—provided the requisite notice. See, e.g., Nautilus I, 715 F.3d at 899
(holding that the “claim language, specification, and the figures … provide
sufficient clarity to skilled artisans”); see also Biosig Supp. Br. 8-9 (collecting
passages from Nautilus I showing that the majority considered Claim 1 itself, not a
construction of the claim).
To the extent that the concurrence analyzed the district court’s construction
of “spaced relationship,” rather than the claim language itself, that was only
because Nautilus had not conditionally cross-appealed that construction. Nautilus
I, 715 F.3d at 906 (Schall, J., concurring). In the concurrence’s view, the failure to
cross-appeal meant that Nautilus was stuck with the district court’s construction,
and there was no need for the Court to reinterpret the term. Id. In addition to that
procedural point, moreover, Judge Schall endorsed the majority’s reading of the
intrinsic patent evidence, agreeing that it “‘discloses certain inherent parameters …
which to a skilled artisan may be sufficient to understand the metes and bounds of
“spaced relationship.”’” Id. at 905 (quoting id. at 899 (majority op.)) (emphasis
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added). Thus, all three Judges on the Panel applied the correct test and reached the
same conclusion.
Second, contrary to Nautilus’s contention, there was nothing improper about
this Court’s consideration of statements by the PTO examiner during the
reexamination proceeding. (See Naut. Supp. Br. 12-13.) This Court held that the
examiner’s statements were evidence of how a skilled artisan reading the ’753
patent would interpret Claim 1. See Nautilus I, 715 F.3d at 900. That is perfectly
appropriate, because a PTO examiner is presumed to have a measure of expertise
in the art and to be familiar with the level of ordinary skill therein. See
PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1304 (Fed. Cir. 2008)
(quotation omitted). While Nautilus is correct that the examiner’s statement in
2007 would not help the skilled artisan to “innovate around the patent the day it
issued,” that is beside the point. (Naut. Supp. Br. 13.) The Court did not think that
the examiner’s statement put skilled artisans on notice of the bounds of Claim 1,
but rather that it reflected the understanding that skilled artisans already had. And
evidence of a skilled artisan’s understanding of a claim is plainly probative of
definiteness. See, e.g., United Carbon Co. v. Binney & Smith Co., 317 U.S. 228,
233-34 (1942).1
1 Moreover, in one of its two examples (see Naut. Supp. Br. 13), Nautilus employs
selective quotation to create the misimpression that this Court relied on post-filing
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For the same reasons, Nautilus’s complaint that Dr. Lekhtman’s declaration
was “15 years too late” is mistaken. (Naut. Supp. Br. 22.) Dr. Lekhtman’s
declaration is evidence of how a skilled artisan would have understood the scope of
Claim 1 in 1992, and is therefore relevant to the definiteness inquiry. Dr.
Lekhtman specifically demonstrated through reference to contemporaneous
publications that it was commonly known in 1992 how to measure EMG signals
and which variables affected that measurement. (See JA 243 (¶ 90).)
Third, the expert declarations on which this Court relied did not present
“multiple competing interpretations” of Claim 1. (Naut. Supp. Br. 13.) As an
initial matter, the Supreme Court’s decision has no bearing on this argument.
Nothing in Nautilus II speaks to any “conflict[]” between the expert declarations.
(Id.) Nautilus already lodged essentially the same attacks on Biosig’s experts in its
pre-Nautilus II briefing to this Court, without success. (See Naut. App. Br. 43-44.)
Evidently, by renewing its challenges to Biosig’s expert declarations under the
evidence. The full quote from the decision (with the words Nautilus omitted in italics) is: “The functionality of the claimed heart rate monitor as recited in claim 1, described in the specification, and which provided the basis for overcoming the PTO’s office action rejections during the reexamination, sheds further light on the meaning of ‘spaced relationship.’” Nautilus I, 715 F.3d at 899. The full quote thus shows exactly the opposite of what Nautilus claims: This Court relied on intrinsic evidence, available to the skilled artisan at the relevant time, to construe the term “spaced relationship.”
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guise of discussing Nautilus II, Nautilus hopes to surreptitiously relitigate an
unrelated issue on which it lost.
Dr. Lekhtman and Dr. Galiana did not express opposing views on the
meaning of “spaced relationship.” Although Dr. Galiana did not explicitly employ
the words “a priori balancing” as Dr. Lekhtman did, she plainly understood that
electrode configuration is vital to equalizing EMG detection at both sides of the
monitor. Indeed, Dr. Galiana emphasized that the “two detected EMG signals on
opposite hands” must “have substantially the same amplitude and phase” (JA
1030-31, 1034 (emphasis in original)), which can be accomplished by adjusting the
spacing of the electrodes (JA 1030-31). She then explained that a lab technician
reading the ’753 patent was able to determine the operative “spaced relationship”
with minimal experimentation. (Id. at 1049-50.) There is no better evidence of
Claim 1’s clarity to a skilled artisan than that. Her declaration fully comports with
Dr. Lekhtman’s on the key point in this appeal: The claimed “spaced relationship”
could easily be ascertained by a person of skill in the art.
Nor did Drs. Lekhtman and Galiana conflict on whether the electrodes could
be “closely spaced.” Dr. Lekhtman did not state that “closely spaced” electrodes
would never achieve the desired functionality. Rather, he explained that Fujisaki’s
specific configuration of wide electrodes used in conjunction with narrow spacing
would not permit EMG detection to be equalized at both sides of the monitor. (Id.
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at 241.) Dr. Lekhtman did not suggest, however, that other electrode
configurations with narrow spacing—like Dr. Galiana’s—would necessarily fail.
Finally, contrary to Nautilus’s characterization, Dr. Yanulis did not
“embrac[e] competing interpretations” of “spaced relationship.” (Naut. Supp. Br.
13.) Indeed, on the sole page cited by Nautilus for this point (JA 1670), Dr.
Yanulis explained that a person of skill would know to adjust the electrode spacing
at the left and right sides of the monitor until the EMGs detected at both sides were
equal. That mirrors what Dr. Lekhtman asserted in his declaration, and it is
precisely the position that Biosig has espoused throughout this litigation. (See,
e.g., JA 242 (¶ 82); Nautilus I, 715 F.3d at 900.)2
This Court has previously considered the Lekhtman, Galiana, and Yanulis
declarations and found no inconsistency within or among the three. In fact, the
2 Nautilus is flatly wrong when it alleges that Biosig has taken inconsistent positions on the meaning of “spaced relationship.” (Naut. Supp. Br. 23.) From day one, it has been Biosig’s position that in isolation, a “spaced relationship” is just a space; but when read in conjunction with Claim 1’s “whereby” clause, it becomes clear that the “spaced relationship” must be set so that EMG detection is the same at both sides of the monitor. (See, e.g., JA 2827-29; JA 2833-34; Dkt. No. 22 in Case No. 10-cv-7722, at 4.) Nautilus at one time shared that view, acknowledging that the “whereby” clause clarifies the bounds of the “spaced relationship.” (See Biosig Supp. Br. 17-18.) This Court also agreed that the “whereby” clause “sheds further light on the meaning of ‘spaced relationship,’” Nautilus I, 715 F.3d at 899. There is no credible position that the two limitations are unlinked.
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Court held that Dr. Galiana’s declaration “supported” Dr. Lekhtman’s, and that Dr.
Yanulis’s declaration “confirmed” the other two. Nautilus I, 715 F.3d at 901.
Moreover, the Court plainly considered all three declarations to be competent
evidence when it relied on them for its definiteness determination. See id. at 900-
01. Accordingly, although Nautilus would like to relitigate the issue, this Court
has already rejected Nautilus’s attacks on Biosig’s experts.
In sum, Nautilus has failed to establish a single respect in which this Court’s
reasoning in Nautilus I has been undermined by Nautilus II. Since the balance of
Nautilus’s supplemental brief merely recycles arguments that this Court has
already rejected, those arguments should be disallowed again, for the same reasons
that the Court explained in Nautilus I.
II. Nautilus Relies Exclusively on “Post Hoc” Legal Argument
The most telling aspect of Nautilus’s supplemental brief is its attempt to
demonstrate Claim 1’s lack of clarity without citing a shred of actual evidence
regarding what a skilled artisan would understand. (Naut. Supp. Br. 14-21.)
Instead, over the course of seven pages, Nautilus engages only in self-serving
speculation about what a skilled artisan “might” think, based on the conjectures of
its attorneys. If that were the only proof in the case, it would be insufficient to
show indefiniteness; and measured against the array of expert opinions that Biosig
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proffered, it cannot remotely justify the district court’s grant of summary judgment
to Nautilus.
If Nautilus II teaches anything, it is that a definiteness analysis needs to be
conducted from the perspective of a skilled artisan at the time of filing, not that of
a lawyer or judge acting “post hoc.” 134 S. Ct. at 2130. Yet, the purported
“uncertainty” that Nautilus attributes to Claim 1 is based entirely on a dubious
legalistic analysis of the ’753 patent undertaken by its lawyers in 2014. For
example, Nautilus contends that a skilled artisan reading the ’753 patent in 1992
would invoke the rule against superfluity to understand the patent (Naut. Supp. Br.
15-16) or would count the number of words between claim limitations before
deciding whether the limitations are linked (id. at 17). But Nautilus presents no
evidence showing that a skilled artisan would have engaged in such a
hypertechnical and legalistic analysis of the claim text.
The primary “ambiguity” in Claim 1 claimed by Nautilus concerns whether
the “spaced relationship” plays a role in EMG equalization. (See id. at 14-21.) But
on that point, the evidentiary record is clear: A skilled artisan would understand
the connection between the two. Indeed, this Court has already so held, stating that
the skilled artisan would know to “apply a test and determine the ‘spaced
relationship’ as pertaining to the function of substantially removing EMG signals.”
Nautilus I, 715 F.3d at 901.
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Notwithstanding the record and this Court’s previous holding, Nautilus
contends that a skilled artisan might think that there is no relationship between the
claimed spacing and the function of cancelling EMGs because Claim 1 does not
explicitly link the two. (See Naut. Supp. Br. 17-18.)3 But a patent need not spell
out what a skilled artisan already knows. See, e.g., Carnegie Steel Co. v. Cambria
Iron Co., 185 U.S. 403, 437 (1902) (noting that the patent drafter “may assume that
what was already known in the art … was known to” the skilled artisan). And the
record is undisputed that a skilled artisan reading the ’753 patent would have
understood the linkage between the two limitations, as well as how to determine
the proper “spaced relationship,” without needing explicit instructions. See, e.g.,
Nautilus I, 715 F.3d at 900. Therefore, although Nautilus’s lawyers claim as part
of their litigation strategy to be confused about whether the “spaced relationship”
plays a role in achieving the desired functionality, the record shows that skilled
artisans would not.4
3 Nautilus’s first and second “clues,” purportedly suggesting that electrode spacing plays no role in EMG-cancellation, are really one and the same: Supposedly, the skilled artisan would think that the “spaced relationship” was unconnected to the claimed functionality because the patent does not expressly link the two. (Naut. Supp. Br. 17.) The link between “spaced relationship” and EMG detection and cancellation, however, is indisputable. See supra n. 2.
4 Nautilus does not even attempt to explain why a skilled artisan would be confused by an isolated statement made by the PTO examiner in rejecting a claim
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In a final thrust of desperation, Nautilus suggests that even if “spaced
relationship” was linked to the functional limitation, Claim 1 is ambiguous because
it is unclear whether it would encompass a monitor with electrodes composed of a
theoretical new material that somehow “inherently” detects equal EMG signals at
both sides of the heart monitor, regardless of the spacing. (Naut. Supp. Br. 19
(emphasis in original).) It is telling that the best ambiguity Nautilus’s attorneys
could conjure up concerns a magical substance that likely could not exist in the
real world.5 In any event, the record shows that a skilled artisan would understand
Claim 1 to cover any heart monitor where EMG equalization is a function of the
“spacing, size, shape, and materials of the electrodes.” Nautilus I, 715 F.3d at 900
(emphasis added).
This case is thus nothing like the tungsten-filament patent in General
Electric Co. v. Wabash Appliance Corp., 304 U.S. 364 (1938) (cited in Naut. Supp.
that was later amended by Biosig and approved by the examiner. (Naut. Supp. Br. 18.)
5 Throughout this litigation, Nautilus’s attorneys have repeatedly put forward hypothetical ambiguities, only to abandon them when new possibilities came to mind. At the Supreme Court, Nautilus argued that it was unclear whether Claim 1 covered monitors that might equalize EMG signals through unspecified “additional circuitry” or a “special sleeve,” instead of through the electrode configuration. (Sup. Ct. Pet’r Br. 48; Sup. Ct. Pet’r Reply Br. 20.) The relentless effort by Nautilus’s attorneys to attribute ambiguity to Claim 1 only highlights the absence of any real confusion experienced by skilled artisans.
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Br. 20-21). There, the patent provided no structural description of the tungsten
grains that purportedly carried out the novel function of preventing filament bulbs
from burning out. Id. at 370-72. Here, by contrast, the ’753 patent provides
substantial detail: It explains to a skilled artisan that electrodes configured to
detect equal EMG signals from both hands, plus a differential amplifier, can
achieve the desired functionality of eliminating EMG noise and enabling the
measurement of ECG signals. Although the patent is silent regarding one aspect of
the invention—the precise method for configuring the electrodes to equalize EMG
detection—the record shows that a skilled artisan already knew how to do that.
Accordingly, this patent satisfies definiteness.
III. Policy Rationales Cannot Justify Invalidating the ’753 Patent
Perhaps recognizing the inherent weakness of its attack on Biosig’s patent,
Nautilus resorts to so-called policy considerations to convince this Court to
invalidate Claim 1. According to Nautilus, if the Court upholds Claim 1 as
definite, it “would fuel the temptation for patent applicants to gain economic
leverage through claim-scope obfuscation.” (Naut. Supp. Br. 24 (capitalization
omitted).) In effect, Nautilus argues that this Court should use this case to send a
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message to misfeasors, who otherwise would deliberately craft ambiguous claims
in an effort to monopolize more than what they invented.6
Even if Nautilus were correct that ambiguous claiming is widespread,
invalidating Biosig’s patent is not the solution. The ’753 patent must be judged on
its own merits. Indeed, the Supreme Court in Nautilus II instructed this Court to
evaluate Claim 1 pursuant to its announced standard for definiteness, not according
to some supposed policy concerns. 134 S. Ct. at 2131. And under the appropriate
analysis, it is clear that Claim 1 meets the definiteness standard and Nautilus has
failed to show otherwise.7 Thus, this case is not an appropriate vessel to carry a
policy message to address Nautilus’ purported concerns about widespread
indefiniteness.
6 Nautilus’s claim that “[p]atent attorneys are trained to include some ambiguous claims in their patent applications” is greatly exaggerated. (Naut. Supp. Br. 24.) Notwithstanding Nautilus’s citation to a single PLI binder, competent attorneys do not deliberately draft ambiguous claims. See, e.g., Robert C. Faber, Faber on Mechanics of Patent Claim Drafting § 10:8:1, at 10-46 (6th ed. 2013) (“[I]t is important to recognize that claim language must be extremely precise.”); Stephen A. Becker, Patent Applications Handbook § 2:9 (2013) (“Language in the claim should not enable more than one interpretation of the claim to be reasonably made.”); Joseph E. Root, Rules of Patent Drafting 293 (2011) (“Avoid contextual ambiguity by concretely defining the bounds of the claim.”).
7 If Nautilus is right that ambiguous patents abound, then this Court will have
plenty of opportunities in the future to send a message when it confronts a patent that actually is ambiguous.
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Nautilus’s contention that “Dr. Lekhtman was in the best position to avoid
… ambiguity” in the patent is irrelevant. (Naut. Supp. Br. 21 (capitalization
omitted).) Nautilus argues that because Dr. Lekhtman could have been more
explicit about the linkage between the spaced relationship and the claimed function
of cancelling EMGs—and because he could have spelled out the steps for
determining the precise spacing for a given set of electrodes, but did not—the
claim must be indefinite. (Id. at 21-23.) In advancing this position, Nautilus
completely disregards the standard for definiteness announced in Nautilus II.
The Nautilus II test is not whether a claim is as detailed or clear as possible,
but whether it provides a skilled artisan with reasonable certainty of an invention’s
bounds. Nautilus II, 134 S. Ct. at 2129. Here, the evidence demonstrates that a
skilled artisan would understand the bounds of Claim 1. See Nautilus I, 715 F.3d
at 901. That is all that is required. Further, Nautilus presents no evidence that a
skilled artisan was unable to discern with reasonable certainty the bounds of the
invention. It is of no moment that, in the eyes of Nautilus’s attorneys, Claim 1
supposedly could have been even clearer. Since the skilled artisan could
understand the bounds of Claim 1, the claim was sufficiently clear.
Indeed, because “absolute precision” in claiming is “unattainable,” Nautilus
II, 134 S. Ct. at 2129, Nautilus’s “greater clarity was possible” test (Naut. Supp.
Br. 22) is fundamentally misguided. If anything, it is Nautilus’s position that
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would raise serious policy concerns: Should Nautilus’s argument carry the day,
unscrupulous infringers would have the incentive to challenge readily
understandable claim language on the ground that some detail might have been
made clearer. And pursuant to Nautilus’s formulation, a patentee could not rely on
the skilled artisan’s knowledge in drafting a claim; rather, he would have to
explicitly spell out every elementary point pertaining to his invention in an endless
pursuit of absolute precision, or risk invalidity for failing to be as explicit as
possible when that patent is litigated years after the filing date. That is not and
cannot be the test prescribed in Nautilus II.
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CONCLUSION
For the reasons explained above, and in Biosig’s original brief on the merits
and its supplemental brief, this Court should again reverse the district court’s grant
of summary judgment to Nautilus.
August 29, 2014 Respectfully submitted,
s/ Mark D. Harris MARK D. HARRIS
DANIEL C. MULVENY MARK D. HARRIS KESSLER TOPAZ PROSKAUER ROSE LLP MELTZER & CHECK LLP Eleven Times Square 280 King of Prussia Road New York, NY 10036 Radnor, PA 19087 (212) 969-3000 (610) 667-7706 JOHN E. ROBERTS
PROSKAUER ROSE LLP One International Place Boston, MA 02110 (617) 526-9600
Attorneys for Plaintiff-Appellant Biosig Instruments, Inc.
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CERTIFICATE OF SERVICE
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Counsel Press was retained by PROSKAUER ROSE LLP, Attorneys for
Plaintiff-Appellant to print this document. I am an employee of Counsel Press.
The undersigned hereby certifies that on August 29, 2014, the foregoing
Plaintiff-Appellant’s Supplemental Response Brief on Remand was filed with
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of such filing to any of the following counsel registered as CM/ECF users:
James E. Geringer Jeffrey S. Love John D. Vandenberg Philip Warrick Klarquist Sparkman, LLP One World Trade Center Suite 1600 121 S. W. Salmon Street Portland, OR 97204 503.595.5300 Attorneys for Defendant-Appellee
Six paper copies will be filed with the Court within the time provided in the
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August 29, 2014 /s/ Robyn Cocho Robyn Cocho Counsel Press