Although terms of degree are not inherently indefinite, claim limitations that are subject to personal preference and individual circumstances probably are indefinite. For example, displaying peripheral images “in an unobtrusive manner that does not distract a user” is not only subjective but also not amenable to consensus, as it will depend “on the unpredictable vagaries of any one person’s opinion.” “The claims, when read in light of the specification and the prosecution history, must provide objective boundaries for those of skill in the art.”
Background / Facts: The patents being asserted here are directed to an “attention manager for occupying the peripheral attention of a person in the vicinity of a display device,” such as images in the corner of a desktop wallpaper or screensaver. The content data presented in the peripheral images are “virtually limitless,” and may include advertisements, video nature scenes, and radio talk shows. In this regard, the claims recite displaying the peripheral images “in an unobtrusive manner that does not distract a user.”
Issue(s): Whether the “unobtrusive manner” limitation is indefinite under 35 U.S.C. § 112, second paragraph.
Holding(s): Yes. “The patents’ ‘unobtrusive manner’ phrase is highly subjective and, on its face, provides little guidance to one of skill in the art. Although the patented invention is a system that displays content, the claim language offers no objective indication of the manner in which content images are to be displayed to the user. As the district court observed, ‘whether something distracts a user from his primary interaction depends on the preferences of the particular user and the circumstances under which any single user interacts with the display.’ … The patents contemplate a variety of stimuli that could impact different users in different ways. As we have explained, a term of degree fails to provide sufficient notice of its scope if it depends ‘on the unpredictable vagaries of any one person’s opinion.’”