One of the interesting things about a docket that includes repeated assertions of the same patent claims where the case law continues to evolve is that you can sometimes see the same judges applying changed legal standards to the same claim language and see the real – world effects of changes in standards.
I was reminded of that this morning when reading a recent order with the court's claim construction rulings and rulings on the defendant's indefiniteness arguments. In that case, the parties agreed on three terms, submitted 10 terms to the court is disputed, and the defendant asserted that five more terms were impermissibly indefinite under the new Nautilus standard.
The court concluded that three of the five were not indefinite, and a fourth would be given its ordinary meaning, but that the fifth was impermissibly indefinite. Interestingly, the same judge had ruled the same term not to be indefinite under the prior standard just a few years ago, but concluded that under the new standard it now was. The net effect was that three claims from two of the 11 patents in suit were invalidated as indefinite.