Appeal No. 2001-0150
Application No. 09/250,617
is broad enough to include within its metes and bounds supports
like those of Deaver that are disposed horizontally.
In addition, we note that the term “horizontally” has a
fixed and definite meaning, and that while the use of the
modifier “approximately” with this term does broaden the term to
some degree, it does not negate the meaning of the word it
modifies. See, Arvin Industries, Inc. v. Berns Air King Corp.,
525 F.2d 182, 185, 188 USPQ 49, 51 (7th Cir. 1975). Moreover,
words such as “approximately” and “about” are well known in the
lexicon of patent claim drafting and enjoy a well developed niche
in the special vocabulary of this field. Such modifiers are
almost universally used by practitioners in claims to prevent a
potential infringer from avoiding literal infringement simply by
making a minor/inconsequential modification that departs only
slightly from the literal scope of a claim.
Thus, in light of the foregoing considerations, we conclude
that the phrase “approximately horizontally” as used in the
present application claims would have been seen by the person of
ordinary skill in the art to merely allow for a reasonable and
minor deviation from a support that is disposed exactly
horizontally.
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