An indefinite patent description will pass muster when pigs fly.  In HIP, Inc. v. Hormel Foods Corporation et al., C.A. 18-615-CFC (D. Del. June 24, 2019), the United States District Court for the District of Delaware held that a patent failed to meet the requirement of 35 U.S.C. § 112 that a patent’s description must not be indefinite.  As a result, the Court held that U.S. Patent Number 9,510,610 (the “#610 patent”) was invalid.

The #610 patent is directed to a process of “producing a pre-cooked sliced bacon product on an industrial scale.”  The description of the patent states, “[a] process . . . to produce a pre-cooked sliced bacon product resembling a pan-fried bacon product.”  Defendants argued that the language “resembling a pan-fried bacon product” was too indefinite because it failed to inform a person of reasonable skill in or knowledge about the product what the patent was.

The Court agreed with Defendants and reasoned that “[n]either the claims nor the written description of the patent clarify the scope of the term or provide any objective criteria to identify or measure the distinguishing features of pan-fried bacon.”  The written description of the #610 patent did not define the term “resembling a pan-fried bacon product.”  However, the written description offered five differences between the product at issue, which is produced by a microwave process, and a traditional “home-fried” product.  Those differences were that the microwave product had a “significantly different texture, mouth feel, bite, appearance, and color . . . .”  Yet, the patent’s written description identified no specific criteria for measuring texture, mouth feel, bite, appearance, and color.

Plaintiff’s expert was unable to articulate an objective standard for determining whether the product resembled “pan-fried bacon.”  Defendants’ expert testified that there were no objective standards in the patent to determine if a bacon product “resembles pan-fried bacon,” and thus, such a determination was subjective to a person of ordinary skill in the art.  The Court held that, without such a standard, the term “resembling a pan-fried bacon product” is a “purely personal, subjective” term that “depends on the unpredictable vagaries of any one person’s opinion.”  Intellectual Ventures I LLC v. T-Mobile USA, Inc., 902 F.3d 1372, 1381 (Fed. Cir. 2018).

Accordingly, the Court held that, because its written descriptions lacked the requisite definiteness of 35 U.S.C. § 112, the #610 patent was invalid:

The #610 patent does not define the term “resembling a pan-fried bacon product.” Neither the claims nor the written description of the patent clarify the scope of the term or provide any objective criteria to identify or measure the distinguishing features of pan-fried bacon.  As a result, the term is purely subjective and the patent fails to meet the definiteness requirement of § 112.  Accordingly, the #610 patent is invalid.