Judgment for Patent defendant following claims construction ruling; Claims Indefinite

PureChoice, Inc. v. Honeywell Intern. Inc., 2008 WL 190317, E.D.Tex., January 22, 2008 (NO. CIV.A. 2:06-CV-244)
Judge: T. John Ward
Holding: Claims construction ruling/Stake Through the Heart of Plaintiff's Case
This opinion started life as Judge Ward's claims construction opinion, but right about page four things went way, way south for the plaintiff when the Court wrote that "it is necessary to consider only three of the terms in dispute. Two of these terms are insolubly ambiguous and render the independent claims invalid. Thus, construction of additional terms is unnecessary."
Yikes!
The crux of defendant Honeywell's argument was that it is impossible to construe or differentiate the terms “environmental air quality” and “non-weather” air quality.  (Not in my college dorm room it wouldn't have been).  As luck would have it, these terms resulted from amendments made following two undocumented telephone interviews during reexamination,  "The patent owner in a ex parte reexamination proceeding has a duty to file a written statement," Judge Ward wrote, citing 37 C.F.R. 1.560(b).  But "[t]he patent owner did not reduce either of the last two phone interviews with the examiner to a written statement. The failure to comply with 37 C.F.R. 1.560(b) does not render a claim invalid. The lack of written record, however, does not provide this court or the public with any information in the prosecution history to determine the scope of these claim terms. The written description is also silent as to these terms. Although there may be some circumstances in which a patentee might overcome these deficiencies, this is not such a case. In this instance, the term is incapable of construction." The claim language is not “sufficiently precise to permit a potential competitor to determine whether or not he is infringing,” Judge Ward concluded.  "Therefore, the court finds that this limitation is indefinite."
It isn't clear from the opinion whether a motion for summary judgment as to indefiniteness had been filed before the Markman proceeding, as is sometimes the case, but it was obvious that the issue was presented in the briefing.