In Ex parte McAward, the Board explained that the Supreme Court's decision in Nautilus does not change the PTO's "long-standing approach to indefiniteness" in pre-issuance examination. The Board will continue to apply Packard, i.e., whether a claim is "cast in clear--as opposed to ambiguous, vague, indefinite--terms." The threshold for proving indefiniteness in a district court litigation, however, would be whether the claims define the inventive subject matter with "reasonable certainty," as required under Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014). The Board did not address the approach to indefiniteness that the PTO may follow in a post-grant trial proceedings under the AIA.
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