Chief Judge Leonard P. Stark recently issued a Memorandum Opinion adopting the Magistrate Judge’s Report and Recommendation on claim construction and denying defendants’ requests for summary judgment on indefiniteness post-Nautilus. Masimo Corporation v. Philips Electronics North America Corporation, et al., C.A. No. 09-80-LPS (D. Del. Dec. 1, 2015). First, defendants argued that the term “said scan” was indefinite because, due to a drafting error, the claim contained no antecedent basis for “said scan.” Id. at 9. Masimo argued that “the error [could] be corrected and that, even absent correction, a person having ordinary skill in the art would understand ‘said scan’ to refer to the result of the analysis module.” Id. The Court agreed with defendants that the Court cannot fix the drafting error. But, the Court also found that the error does not render the term indefinite:
The prosecution history makes clear that Plaintiffs amendment did not seek to substantially change the scope of the claim. Indeed, the ‘”scan module” in the original claim has the same functionality as the “analysis module” in the amended claim. Given the identical claim structure and the context of the amendment, the Court concludes that a person having ordinary skill in the art would understand that “said scan” means “the analysis to qualify the plurality of indication values to be considered as possible resulting indications for the physiological parameter. “
Id. at 11.
Defendants also argued that the term “determine a resulting indication that likely most closely correlates to the physiological parameter” was indefinite. Id. at 12. The Court disagreed:
The specification explains how to calculate two estimates of the physiological parameter (saturation values) and teaches how the invention uses the two estimates to arrive at a resulting indication. Plaintiff has also submitted an expert declaration, which further supports its position, and which (at minimum) shows a genuine dispute of material fact preventing the Court from granting summary judgment of invalidity due to indefiniteness.