Appeal 2007-0136
Application 90/006,222
including a quantity of sintered carbide pellets and a quantity of cast carbide
pellets". The "at least 60% by weight" refers to the "granule", which
"include[s]" quantities of sintered and cast carbide pellets. The word
"including" is an open-ended term in claim construction.9 Thus, while the
composition must be 60% by weight granules, the granules themselves must
include but are not limited to sintered and cast carbide pellets.
BHI defines "pellet" to mean—10
particles [sic] of carbide that are generally spherical in
configuration. Pellets are not true spheres, but lack the corners,
sharp edges, and angular projections commonly found in
crushed an other non-spherical carbide grains or particles.
From this definition, one skilled in the art would have understood pellets to
be generally spherical carbide particles.
BHI gives great weight to "spherical" as a limitation–to the point that
the qualifying adverb "generally" is often ignored in the briefing.11 In claim
construction, "generally" in this context permits a some deviation from
"spherical" consistent with the purpose of the invention.12 BHI's
specification provides some insight into the degree of deviation permitted in
9 Amgen, Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1345,
65 USPQ2d 1385, 1408 (Fed. Cir. 2003) (equating "including" with
"comprising").
10 Spec. 3:32-37.
11 Br. 6-8; Reply 2-4.
12 Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298,
1311, 67 USPQ2d 1865, 1873-74 (Fed. Cir. 2003); accord Howmedica
Osteonics Corp. v. Tranquil Prospects, Ltd., 401 F.3d 1367, 1373,
74 USPQ2d 1680, 1686 (Fed. Cir. 2005) (relying on the described function
to deviate from "uniform").
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