This Commentary addresses the intertwined relationship of claim construction, indefiniteness, and uncertain patent scope. Claim construction is a necessary threshold step and, if effective, can resolve uncertainties in claim scope, reducing the need to invalidate claims as indefinite, as discussed in Part II. Part III demonstrates how the Federal Circuit’s failed claim construction rules accentuate, rather than resolve, ambiguities in claim scope. Part IV explains how the ineffectiveness of claim construction increases the need for an effective indefiniteness doctrine, but, perversely, both decreased the effectiveness of the Federal Circuit’s pre-Nautilus standard and renders any stricter standard too draconian. Part IV proposes that the best way to address uncertain claim scope is to make claim construction more effective, while, surprisingly, largely retaining the Federal Circuit’s pre-Nautilus indefiniteness standard.
Greg Reilly, Completing the Picture of Uncertain Patent Scope, 91 Wash.Univ. L.R. 1353 (2014).