New Nautilus Indefiniteness Standard Justifies Submission of Expert Evidence at Markman Hearing

The court granted defendants' motion to supplement their claim construction briefing with an expert declaration following the Supreme Court's decision in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014). "The Court expects that indefiniteness arguments will be substantial at the upcoming Markman hearing. . . . [Defendant's] argument is that this new standard of proof, which requires 'reasonable certainty' as opposed to a mere determination that a claim is not 'insolubly ambiguous,' benefits from an expert’s opinion in a way that the previous standard did not. [Defendant] reasonably asserts that an expert declaration could be beneficial in assessing whether a claim informs a skilled artisan with reasonable certainty. . . . The Court is not holding that expert testimony is required or necessary for the upcoming Markman hearing. . . . The Court is simply holding that [defendant's] argument that it wishes to present expert evidence based on the new Nautilus standard is reasonable."

Mycone Dental Supply Co., Inc. v. Creative Nail Design, Inc., et al, 1-11-cv-04380 (NJD July 9, 2014, Order) (Simandle, J.)