Appeal No. 2004-0189 Page 5
Application No. 09/782,782
"about" in independent claims 1 and 18 raises a definiteness issue under 35 U.S.C.
§ 112, second paragraph.
The term "about" is a term of degree. When a word of degree is used, such as
the term "about" in claims 1 and 18, 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
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).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007