Case Number: 11:13-cv-02027-JSR (Dkt. 175)
Judge Rakoff denied defendants’ motion for summary judgment that two claims were indefinite. He had previously refused to grant summary judgment of non-infringement with respect to these claims, and the defendants argued that his inability to grant summary judgment of non-infringement means that the claims are necessarily indefinite. After all, according to defendants, if the court could not determine non-infringement, then defendants could not, and the claim is indefinite. The court supported his denial with this: “[t]he test for indefiniteness does not depend on a potential infringer’s ability to ascertain the nature of its own accused product to determine infringement, but instead on whether the claim delineates to a skilled artisan the bounds of the invention.” SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1340-–41 (Fed. Cir. 2005).
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