Interval Licensing v. AOL: When a Term of Degree Has No Anchor

Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014), No. 2013-1282, decided September 10, 2014, was the Federal Circuit’s first significant application of Nautilus’s reasonable-certainty standard, handed down barely three months after the Supreme Court spoke. In an opinion by Judge Chen, the court affirmed that the claim phrase “in an unobtrusive manner that does not distract the user” was indefinite. The decision is the canonical illustration of a purely subjective term of degree — language that asks the reader to supply a value judgment the patent never anchors to anything objective.

At a glance

• Case: Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014), No. 2013-1282
• Decided: September 10, 2014; opinion by Judge Chen
• Patents: U.S. Patent Nos. 6,034,652 and 6,788,314 (an “attention manager” for displaying content in the peripheral attention of a user)
• Disposition: Affirmed the district court’s judgment that the asserted claims were indefinite
• Key term: “in an unobtrusive manner that does not distract the user”

The technology and the parties

Interval Licensing traces to Interval Research, the Palo Alto laboratory founded by Microsoft co-founder Paul Allen. The asserted patents described an “attention manager” — a system for displaying information (images, but defined broadly to include video and audio) in a way that occupies a person’s peripheral attention without commandeering their primary focus. Think of a screensaver-style feed or a ticker that conveys content while a user is doing something else. Interval asserted the patents against a roster of major technology companies, including AOL, Apple, Google, and Yahoo. The case became a closely watched test of how the Federal Circuit would translate Nautilus from principle into practice.

The holding: subjectivity without objective boundaries

The court’s reasoning proceeds in two analytic moves that together define the modern terms-of-degree inquiry.

The first move is a disclaimer the opinion is careful to make: terms of degree are not inherently indefinite. Relative language — “substantially,” “about,” “close to” — is ubiquitous in patent claims and often unavoidable. The Federal Circuit expressly declined to hold otherwise. What Nautilus requires is not the elimination of relative terms but that the claims, read against the specification and prosecution history, “provide objective boundaries for those of skill in the art.”

The second move is the application that doomed the claims. “Unobtrusive manner,” the court found, is “highly subjective and, on its face, provides little guidance.” Whether a manner of display is “unobtrusive” or whether it “distracts” a user is a judgment that varies from observer to observer. The claim language itself supplied no objective metric — no measure of size, duration, prominence, or placement — by which a skilled artisan could test whether a given display fell inside or outside the claim. The problem was compounded by the patents’ expansive definition of “image” to include sounds and video: an attribute that might read as unobtrusive for a faint background graphic could be plainly obtrusive as audio.

The “narrow” exception that could not save the claim

Interval’s strongest argument rested on a single sentence in the specification describing displaying content “in an unobtrusive manner that does not distract a user … such as in the manner of a screen saver.” Interval contended that the “such as” example gave the term concrete meaning.

The court rejected the rescue for an instructive reason. A lone example introduced by “e.g.” or “such as” is a narrow, non-limiting illustration — it tells the reader that a screensaver is one instance of unobtrusiveness, not that unobtrusiveness means screensaver-like behavior. A single permissive example cannot transform a facially subjective standard into an objective one; it identifies a point inside the territory without drawing the fence. Had the specification said the display must operate “in the manner of” a screensaver — phrasing that confines rather than illustrates — the analysis might have differed. As written, the example left the outer bounds of “unobtrusive” exactly as uncertain as before.

This distinction — between a defining limitation and a non-limiting example — has become a recurring fault line in post-Nautilus litigation. Patentees frequently point to specification examples to shore up a vague term; Interval teaches that examples illuminate meaning only when they supply, or are framed as supplying, an objective boundary rather than a single permitted embodiment.

Open questions

Interval sharpened the line between subjective and objective terms of degree but did not draw it with precision. How much specification support converts a subjective term into a reasonably certain one remains a fact-bound question, answered differently as the technology and the intrinsic record vary. The opinion also leaves open how courts should treat terms that are partly objective — anchored to a measurable baseline for some embodiments but not others — a problem the Federal Circuit would confront in later cases such as Sonix, where “visually negligible” survived precisely because it was tethered to what the normal human eye can perceive. Interval tells us what failure looks like; it offers less guidance on the minimum sufficient anchor.

Implications for inventors and businesses

• Avoid claims that turn on a reader’s reaction. Words measuring an observer’s subjective experience — “unobtrusive,” “distract,” “pleasant,” “convenient” — are presumptively dangerous unless the specification supplies an objective yardstick.
• Draft definitions, not just examples. A single “such as” illustration will rarely save a subjective term. If a relative term is essential, define it operationally or tie it to a measurable property.
• Watch broad antecedent definitions. Interval’s claims were weakened because “image” swept in audio and video, making a single subjective standard apply across incommensurable media. Broad definitions can amplify, not cure, indefiniteness.
• Use Interval offensively. Accused infringers facing claims built on observer-dependent language have a strong, frequently cited template for an indefiniteness defense.

Frequently asked questions

Are terms of degree always indefinite after Interval? No. The court explicitly held that terms of degree are not inherently indefinite. They fail only when the claim, read with the specification and prosecution history, lacks objective boundaries a skilled artisan can apply.

Why didn’t the “screen saver” example save the claim? Because it was a single, non-limiting illustration introduced by “such as.” It identified one example of unobtrusiveness without defining the term’s outer limits, so it could not supply the objective boundary Nautilus requires.

How does Interval relate to Nautilus? It is one of the earliest Federal Circuit decisions applying the Nautilus reasonable-certainty standard, and it operationalized that standard for subjective terms of degree by asking whether the intrinsic record supplies objective boundaries.

Authorities and sources

• Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014), No. 2013-1282 (Sept. 10, 2014). Opinion via the U.S. Court of Appeals for the Federal Circuit and Justia.
• Decision date, Chen authorship, patents (6,034,652 and 6,788,314), and the “unobtrusive manner” holding corroborated by Wiley and Mintz.