Today EFF, together with Public Knowledge, filed an amicus brief in Nautilus v. Biosig Instruments. This case deals with a key problem with the patent system: the flood of vague and ambiguous patents. The petitioner is asking the Court to take the case and restore the Patent Act’s requirement that patent claims be definite. In other words, that patents actually put people on notice, in advance, of what they cover and what they do not.

The Federal Circuit (the intermediate appellate court that hears patent cases) expressly tolerates ambiguous patents. It allows ambigious patent claims to stand so long as a meaning can be ascribed—“however difficult that task may be” and even if this meaning is “one over which reasonable persons will disagree.” This loose standard encourages patent applicants to craft vague claims that they can stretch to cover later technology. These vague patents—which are especially prevalent in software—are the favorite tool of patent trolls. By striking down vague and ambiguous patents, the Supreme Court can improve patent quality and reduce opportunistic patent litigation.

For more about what's at stake in this case, here’s is the introduction from our brief:

A developer wishes to build a hotel by a highway, and is searching the records of deeds for a prospective plot of land. The search reveals a recordation of an easement stating in part, “the western boundary is in a spaced relationship with the highway.”

What can the developer do? “Spaced relationship” could mean a foot from the highway, or a yard, or a mile. The developer could guess at the meaning, but a wrong guess could render the entire investment in building the hotel a waste. Should the case be brought to court, different judges or juries could reasonably disagree on the meaning. Worse yet, when the easement owner sues the developer, the owner will have the benefit of hindsight in making his argument for interpreting the property claim, but the developer has no such benefit when choosing where to build the hotel. The cards are stacked against the developer, a deadweight loss for the hotel business and for the economy at large.

Beyond creating this uncertainty for developers, allowing ambiguous words in property claims would encourage owners of real property to exploit such ambiguities, so that they might later alter or stretch the grant. Rather than providing adequate notice to the public, such deeds would deter the public from improving land for fear of the breadth of such vaguely worded instruments.

Such ambiguous descriptions of the metes and bounds of real property would never be tolerated, but for years the Federal Circuit has tolerated equally ambiguous descriptions of the metes and bounds of patents. Indeed, the term “spaced relationship,” so clearly improper in the hypothetical example above, is the exact term held “definite” by that court in the present case for petition.

Certainly patents differ in many respects from real property, but clarity in the boundaries should not be one such difference. The claims of a patent serve a public notice function, informing others of what may and may not be done. But the Federal Circuit’s “insolubly ambiguous” test for indefiniteness of patent claims abrogates this public notice function, permits the proliferation of indeterminate claims, invites abuse by clever patent drafters, and contributes to a general and widespread sense that patents are unclear and uninformative documents. The test thus fails to serve the constitutional mandate that patents “promote the Progress of Science and the useful Arts.” U.S. Const. art. 1, § 8, cl. 8.

To reverse these problematic trends, the Court should disapprove the Federal Circuit’s “insolubly ambiguous” test and restore a proper interpretation of indefiniteness of patent claims. To do so, it must review the present case. The Federal Circuit’s test for indefiniteness is so monumentally difficult to satisfy that appealing a case on this issue is almost certainly futile and almost never done. Should the present case not be reviewed, another appropriate vehicle for review may not arise.

Because the Federal Circuit’s standard for claim indefiniteness conflicts with both the plain language of the Patent Act and decisions of this Court, because the “insolubly ambiguous” standard encourages patentees to craft vague claims and creates uncertainty for the public, and because this case cleanly presents the issue for review, this Court should grant certiorari.