SMU Law Review


Patent law has a problem. Its foundation rests on the principle that a patent will clearly define its boundaries through its claims—the metes and bounds—yet the very standard for defining the boundaries is unclear. In 2014, the Supreme Court sought to guide courts and the patent bar on the level of precision needed when drafting these claims. Endorsing a “reasonable certainty” standard, the Court had one goal in Nautilus v. Biosig Instruments, Inc.: to give definiteness to the law of patent indefiniteness. Today, instead of a unitary definiteness standard that is applied across all forums of patent adjudication, there are at least three different standards. This Article argues that contract law offers a fresh perspective on the “zone of uncertainty” in patent claims. In both patent law and contract law, there are inherent limitations to the language that is used to express an agreement between the two parties in a contract and to the boundaries of an invention claimed in a patent. This means, in turn, that all contracts are incomplete and that all patents have some degree of uncertainty. With parallel doctrines of indefiniteness, attention to similarities and dissimilarities in contract law and patent law can foster creative and interesting new ways of understanding and assessing the current approach taken in patent law regarding the level of precision demanded of patent claims in both their pre- and post-issuance state.

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