Mosaid v. Freescale, 6:11cv173 (4/29/13)
Judge: Keith Giblin
Holding: Motion for Summary Judgment of Indefiniteness Recommended DENIED
Judge Schneider referred the Markman in this case to Judge Giblin, who produced a report and recommendation last week on the defendants' motion for summary judgment of indefiniteness.
Judge Giblin wrote that Defendants' argument essentially boiled down to the contention that the permissive wording of one of the claims rendered it indefinite because a PHOSITA couldn't figure out whether the claim could be satisified by an apparatus that was something, something else, or something completely different entirely. (Actually those are my words, not the Court's - kind of tells you where I fall on the PHOSITA continuum, doesn't it?)
The Court concluded that the claim was not indefinite, noting that he could not find, nor could the defendants, any authority for the proposition that words of permission in a claim render it automatically indefinite. In other words, he decided that a PHOSITA could, in fact, figure it out.