Bayer Intellectual Property GMBH, et al. v. Warner Chilcott Company, LLC, et al, C.A. No. 12-1032-GMS, April 21, 2015.

Sleet, J.  Defendant’s motion for summary judgment based on indefiniteness is granted.

The disputed technology relates to an oral contraceptive regimen.  During claim construction proceedings, the court found it was unable to construe the disputed terms containing words of degree – “High,” “low,” “satisfactory,” and “reliable.”  The court determined that it was unable to discern the metes and bounds of the asserted claims and this summary judgment motion based on indefiniteness followed.  The intrinsic record fails to assign meaning to these words of degree.  Plaintiff contends one skilled in the art would understand what they mean.  Even if the court were to accept newly offered extrinsic evidence on the meaning of the disputed terms, the court would still find the patent to be indefinite because the intrinsic record fails to provide objective boundaries for those of skill in the art.  This decision necessarily eliminates plaintiff’s interference allegations regarding one of defendant’s patents.