Q) Indefinite Claim using 'high'

by patentbar on August 7, 2008 · 23 comments

This question asked if a claim was indefinite because it used the word ‘high’ instead of a range. There were various answers ranging from never to always. I chose one in the middle which said something about it being acceptable as long as there is enough description in the specification that would allow one of ordinary skill in the art to know what ‘high’ means. See Atmel Corp. v. Information Storage Devices, Inc. in MPEP 2181.

1 GoJackets November 13, 2009 at 1:22 pm: 2173.05(b) – Relative Terminology

The fact that claim language, including terms of degree, may not be precise, does not automatically render the claim indefinite under 35 U.S.C. 112, second paragraph. Seattle Box Co., v. Industrial Crating & Packing, Inc., 731 F.2d 818, 221 USPQ 568 (Fed. Cir. 1984). Acceptability of the claim language depends on whether one of ordinary skill in the art would understand what is claimed, in light of the specification.

WHEN A TERM OF DEGREE IS PRESENT, DETERMINE WHETHER A STANDARD IS DISCLOSED OR WHETHER ONE OF ORDINARY SKILL IN THE ART WOULD BE APPRISED OF THE SCOPE OF THE CLAIM
2 Damien November 21, 2010 at 8:05 pm: Got this question as well today – i second GoJacket. Nearly verbatim answer choice….
3 Overworkked April 28, 2011 at 2:53 pm: Got this on 4/27/2011. I went with GoJackets above as a near verbatim answer.
4 jacquiegardner May 3, 2011 at 7:17 pm: Got this one today. I went with the same answer as above.
5 Becker May 17, 2011 at 3:17 pm: I got this question 5/16/2011.
6 Sarah May 18, 2011 at 4:12 pm: Got this question today 5/18/11.
7 Gregory June 8, 2011 at 2:59 pm: got this questions and the answer choices are difficult to pick between…most of them identify the workd “high” as indefinite, yet each for a different reason.
8 BigBadVoodoDaddy July 26, 2011 at 6:27 pm: Got this one July 2011. Easy point.
9 Bob August 3, 2011 at 2:05 am: Got this on 8/2/11
10 maggie August 26, 2011 at 12:11 am: got this 8/24
11 Remanded September 18, 2011 at 8:57 pm: Got this one today, 18 September 2011.
12 Jamecam October 30, 2011 at 11:14 pm: I got this question on 10/29/2011.

The correct answer is that the term “high” is not necessarily indefinite because relative terminology is acceptable if a person of ordinary skill would understand what the term means based on the description in the specification and the understanding in the art.
13 ChemEEE November 9, 2011 at 6:30 pm: got this 11/7/11
chose same answer as Jamecam
14 Bagelman January 20, 2012 at 12:03 pm: Got this 1/18/12.
15 Remanded January 20, 2012 at 7:39 pm: Saw this question 20 January 2012.
16 Alfredo January 24, 2012 at 12:48 pm: Got this one 1/23/12
17 Anna March 7, 2012 at 4:39 pm: Had this one on 02/04/12
18 KillianRed March 17, 2012 at 5:53 pm: Got this on 3/17/12
19 KW July 22, 2012 at 9:18 pm: Got this verbatim today. 7/22/2012
20 fluid September 23, 2012 at 8:59 am: I had it 9/22/2012. The answer was something like “it’s not indefinite if a PHOSITA would understand the range”
21 Random October 15, 2012 at 8:42 pm: Got this one today, same version as fluid on 9/23.
22 B-Real December 28, 2012 at 3:05 pm: I had this on 12/27/12. I chose PHOSITA would understand.
23 Z March 31, 2013 at 3:13 pm: Got this 3/30/13. Chose same answer as Jamecam.