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

> The Federal Circuit's first major post-Nautilus decision held the phrase 'in an unobtrusive manner that does not distract a user' indefinite, illustrating how purely subjective language fails the reasonable-certainty test.

Topic: Patents  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/interval-licensing-v-aol-terms-of-degree-indefiniteness/


*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 just over 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 a 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 in part, vacated in part, and remanded. The court affirmed the judgment that the claims depending on the "unobtrusive manner" phrase were indefinite, but modified the constructions of "attention manager" and "instructions" and vacated the non-infringement judgment as to claims 15-18 of the '652 patent
- **Key term:** "in an unobtrusive manner that does not distract a 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 such as "substantially," "about," and "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 example" that could not save the claim

Interval's primary argument was not about examples at all. It contended that "unobtrusive manner" was tied *exclusively* to one of the specification's two main embodiments, the "wallpaper" embodiment, which displays content while the user is engaged in a primary interaction. If that were right, "unobtrusive" would carry a purely spatial meaning. The court disagreed, and the screen saver embodiment is what defeated the argument: the specification presents both the screen saver and the wallpaper embodiments as "further aspects" of an attention manager displaying content unobtrusively, leaving the reader, as the court put it, "unsure of whether the 'unobtrusive manner' phrase has temporal dimensions as well as spatial dimensions." The specification was "at best muddled."

Interval's fallback was the narrow example. In the Summary of the Invention, the patents describe presenting information "in an unobtrusive manner that does not distract the user from the primary interaction with the apparatus (e.g., the information is presented in areas of a display screen that are not used by displayed information associated with the primary interaction with the apparatus)." Interval argued that if the wallpaper embodiment did not define the phrase, the court must at least adopt that parenthetical.

The court rejected the rescue for an instructive reason. It acknowledged that "a patent which defines a claim phrase through examples may satisfy the definiteness requirement," but declined "to cull out a single 'e.g.' phrase from a lengthy written description to serve as the exclusive definition of a facially subjective claim term." The grammar of the phrase mattered: "Had the phrase been cast as a definition instead of as an example," the court wrote, "if the phrase had been preceded by 'i.e.' instead of 'e.g.', then it would help provide the clarity that the specification lacks." As written, the example identified a point inside the territory without drawing the fence. With "this lone example, a skilled artisan is still left to wonder what other forms of display are unobtrusive and non-distracting." The court's own test case: what if a displayed image takes up 20% of the screen space occupied by the primary application? The specification offered no indication.

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. That is 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 "e.g." illustration will rarely save a subjective term; *Interval* suggests "i.e." phrasing, which defines rather than illustrates, does more work. 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 specification's example save the claim?** Interval pointed to an "e.g." phrase in the Summary of the Invention describing content shown in areas of the screen not used by the primary interaction. The court declined to cull out a single "e.g." phrase from a lengthy written description to serve as the exclusive definition of a facially subjective term. Had the phrase been preceded by "i.e." instead of "e.g.", the court said, it would have helped supply the clarity the specification lacked.

**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](https://www.cafc.uscourts.gov/9-10-2014-13-1282-interval-licensing-llc-v-aol-inc-opinion-13-1282-opinion-9-9-2014-1/) ([PDF](https://www.cafc.uscourts.gov/opinions-orders/13-1282.opinion.9-9-2014.1.pdf)).
- Decision date, Chen authorship, patents (6,034,652 and 6,788,314), and the "unobtrusive manner" holding corroborated by [Wiley](https://www.wiley.law/alert-3275) and [Mintz](https://www.mintz.com/insights-center/viewpoints/2014-11-21-indefiniteness-are-you-reasonably-certain).