Appeal No. 95-3789 Page 7
Application No. 08/047,047
The phrase "on the order of" is a term of degree. When a
word of degree is used, it is necessary to determine whether the
specification provides some standard for measuring that degree.
See Seattle Box Company, Inc. v. Industrial Crating & Packing,
Inc., 731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir. 1984).
Admittedly, the fact that some claim language, such as the
term of degree mentioned supra, may not be precise, does not
automatically render the claim indefinite under the second
paragraph of § 112. Seattle Box, supra. Nevertheless, the need
to cover what might constitute insignificant variations of an
invention does not amount to a license to resort to the unbridled
use of such terms without appropriate constraints to guard
against the potential use of such terms as the proverbial nose of
wax.4
In Seattle Box, the court set forth the following
requirements for terms of degree:
When a word of degree is used the district court must
determine whether the patent's specification provides
some standard for measuring that degree. The trial
4 See White v. Dunbar, 119 U.S. 47, 51-52 (1886) and
Townsend Engineering Co. v. HiTec Co. Ltd., 829 F.2d 1086, 1089-
91, 4 USPQ2d 1136, 1139-40 (Fed. Cir. 1987).
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