In HZNP Medicines LLC et al. v Actavis Laboratories UT, Inc., 940 F.3d 680 (Fed. Cir. 2019), a Federal Circuit panel affirmed the district court’s holding that the transitional phrase “consisting essentially of” rendered the claims at issue indefinite. See, my previous post here – https://www.ksjlaw.net/federal-circuit-holds-that-transitional-phrase-consisting-essentially-of-renders-claim-indefinite-unless-the-basic-and-novel-properties-of-the-invention-are-definite/ On February 25, 2020, the Federal Circuit denied HZNP’s request for a rehearing en banc. HZNP v. Actavis Request for en banc review
Four judges dissented (Newman, O’Malley, Stoll and Lourie), with Judge Lourie writing the dissenting opinion, repeatedly stating in various permutation, indefiniteness is determined by the language of the claims:
The majority here, affirming the district court, concluded that the claim was indefinite because of inconsistencies in the meaning of “better drying time…” However, better drying time is not in the claim, and it is the claims that the statute requires be definite.