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The U.S. Court of Appeals for the Federal Circuit’s New Year’s eve opinion in
Ball Metal v. Crown Packaging, though nonprecedential, raises important considerations for pharmaceutical and biologics patents – where patent challengers regularly allege the indefiniteness of “measurement” claim terms that describe pharmacologic or physicochemical properties of the invention. Under
Ball Metal, even if a “measurement” term is found to allow for multiple different measurement methods that can produce different results, indefiniteness may still be avoided if the challenger cannot show that such differences “matter for determining whether or not [the] claim limitation is met by those who might realistically be practicing the other claim limitations.”[i]