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[smgsmc]

Hi.  Suppose I have claim language such as "wherein the first length is equal to the second length".  How "equal" do they have to be in order to infringe?   Do I avoid infringement if they are different by more than x%?  To minimize the chances of competitors doing easy workarounds to avoid infringement, is it best to use the qualifier "substantially":  "wherein the first length is substantially equal to the second length"?  To address 112 indefiniteness issues, the spec would discuss tolerances on the lengths.

Ideally, the two lengths should be equal.  In practice, there are permissable tradeoffs between costs and performance. Often, there is not a hard tolerance, but rather a dropoff in performance as the differences in lengths increases.  For example, consider two arms mounted 180 deg apart on a motor shaft.  To maintain a balanced load, the lengths of the two arms should be equal.  If the lengths vary, the load will become unbalanced, and the motor bearings will wear out faster.  Vibration will also set in.  How much the lengths can be unequal will depend on the application (the tolerance on a fan blade at low speed can be looser than the tolerance on a fan blade at high speed, for example). 

Is "substantially equal to" the preferred claim language in these instances?  Thanks.

[Ghoti]

I did a bit of research in Kahrl’s, Patent Claim Construction, on Imprecise Terms in case it’s of use to you.

According to Kahrl the most prominent case using a variable term was Hilton Davis Chemical Co v Warner-Jenkinson Co. The claim stated ‘a pH of approximately 6.0 to 9.0’ and the accused process operated at 5.0. Under the doctorine of equivalents, the process infringed as there was no substantial differences between the claim and the accused process.

In Seattle Box Co., Inc. V. Industrial Crating & Packaging a claim read ‘blocks...height substantially equal to or greater than the thickness...of pipes’. The accused pipe rack used blocks with a height 1/16-inch shorter than the diameter of the pipes . The court found infringement. (The spacer was 5-1/2-inch). I find this interesting as the purpose of the spacer was to absorb the load from above and thus protect the pipes. I presume this is because a compressive force down on the pipes of 1/16-inch is not considered squashing/damaging for oil-field pipes.

In Ortho-McNeil Pharmaceutical, Inc v Caraco Pharmaceutical Laboratories, Ltd the term ‘about 5:1’ was used. The patentee’s expert stated that for ratios between 1:3.6 to 1:7.1 there was no statistically significant difference to a 95% confidence level. The appellate panel confirmed that this statistical measure was a useful tool to determine the scope of ‘about’.

My humble opinion (still studying) is that it comes down to whether a skilled person in the art would consider the two substantially different. In your example of equal lengths on a motor, if there is no substantial change to the effectiveness of the motor at a 10% difference then I would think it would likely infringe. If the purpose of the invention was to reduce wear then maybe it needs to be a lower difference to infringe. What muddies up this approach for me is that in Cohesive Technologies Inc v. Waters Corp the Federal Circuit said ‘it is the purpose of the limitation to the claimed invention-not the purpose of the invention itself-that is relevant’. Not really sure how to apply this.

Apologies for the long post, hope it helps.

[klaviernista]

A few thoughts:

1.  First and foremost, claims should be drafted with an eye towards literal infringement.  Meaning that the claims should encompass the invention in such a way as to provide meaningful protection against persons who practice within the literal scope of the claim language.  In my opinion (and I'm sure I can pull case law to support this), if a claim defines an absolute equality between two components e.g., "the length of A is equal to the length of B," then literal infringement would require a competitor to practice the claimed invention, i.e., to use an A and a B that are exactly "equal" in length.  If the competitor's A and B differ in length slightly, the competitor does not literally infringe the claim.

2.  In view of #1, I ALWAYS include endpoint modifiers in any ranges that I claim, unless the prior art forces me to eliminate them.  E.g., I say, "from about 1 to about 5," not "1 to 5."  I also try to avoid using modifiers that exclude the endpoints of a range. E.g., I say, "from about 1 to about 5," and not "between 1 and 5."  Why? Because the ordinary meaning of "between 1 and 5" excludes 1 and 5, but encompasses 1.01-4.99.  And contrary to what an examiner might say, the term "about" IS definite, regardless of whether there is an explicit description of what it means in the specification.  In other words, if you want to define the term, "about" in the specification, fine.  But even if you don't, the courts will employ claim construction principles to the term, as evidenced by the cases Ghoti mentioned in his post.

3.  The words an applicant uses in a claim can be (and often are) interpreted as having a disclamatory effect.  The claims define the scope of the subject matter that the applicant claims is his invention.  Thus, by definition, claim language also EXCLUDES that which the applicant does NOT claim is his invention.  In application, say that an an applicant claims a composition containing a component, A, which is present in an amount "between 1 and 5 weight %." A court could easily say that the applicant's choice of language amounts to a disclaimer of the endpoints, namely 1 weight % and 5 weight %.  Put another way, if I was accused of infringing this claim, but used either 1 weight % or 5 weight % of component A, a major point of my defense would be that:  1.  the literal language does not encompass 1 or 5, and 2.  the applicant dislaimed the endpoints (1 and 5) by virtue of his selection of claim language, and thus, the DOE should not apply.  Note that this argument would be particularly effective if the range in question was added by amendment after the application was filed.  Why? See the Honeywell case (a follow up to Festo; discussed in the link below), which essentially states that all narrowing amendments made for patentability will bar application of the DOE, albeit on a theory of prosecution history estoppel, and not disclaimer.

http://www.foley.com/files/tbl_s31Publications/FileUpload137/2100/Honeywell%20Nail.pdf

4.  For all of the above reasons, if the best argument you have is that a competitor infringes under the doctrine of equivalents, you are not in a good position.  And that does not even take into account the fact that the CAFC has been on a mission over the last 10 years or so to eviscerate (if not eliminate) the doctrine of equivalents. 

Good luck.

Klav

[khazzah]

Hi.  Suppose I have claim language such as "wherein the first length is equal to the second length".  How "equal" do they have to be in order to infringe?   Do I avoid infringement if they are different by more than x%?  To minimize the chances of competitors doing easy workarounds to avoid infringement, is it best to use the qualifier "substantially":  "wherein the first length is substantially equal to the second length"? 

Klav hit all the important points, and why it's good to use qualifiers such as "substantially" and "about."

The next question might be "does 'substantially equal' mean within X%?" I don't think there is any hard and fast rule there, unless you discuss tolerances in your spec. If you don't, I think it depends on the technology. So in some technologies "substantially" might cover +-5% and in others +-1%.

To address 112 indefiniteness issues, the spec would discuss tolerances on the lengths.

I agree with klav, that you don't have to discuss tolerances in the spec to avoid indefiniteness. In litigation there would be expert evidence on what sort of tolerance a POSITA expects. I can see some Examiners giving you a hard time in pros if you don't say in your spec what substantially means. I think that you *should* win such an argument with the Examiner.

[JimIvey]

Klav hit all the important points, and why it's good to use qualifiers such as "substantially" and "about."

I haven't been able to get claims with words like that past examiners for years -- 112p2.  Perhaps that's a result of working in technologies in which all things are vague and obvious (according to the Office).

But I appreciate the discussion.  Maybe I'll try putting those words back in my claims.

FWIW, I try to define measurements functionally in claims when possible.  For example, "a pipe having such a length that when [some condition exists] the pipe reaches from the first shelf to the second shelf."  In other words, any important measurements tend to exist to serve a particular purpose and I try to use that purpose in the claims.  It prevents infringement avoidance by mere adjusting of dimensions without also losing the important functionality in the accused device.

Regards.

[smgsmc]

I agree with klav, that you don't have to discuss tolerances in the spec to avoid indefiniteness. In litigation there would be expert evidence on what sort of tolerance a POSITA expects. I can see some Examiners giving you a hard time in pros if you don't say in your spec what substantially means. I think that you *should* win such an argument with the Examiner.

Thanks, everyone.  These responses have been extremely informative.

Karen, follow-up question for you, since you are well-versed in case law.  I've gotten several 112, 2p rejections because the spec had no discussion of what constitutes "substantially".  MPEP 2100 cites ANDREW CORPORATION v
GABRIEL ELECTRONICS, INC. as not requiring the spec to spell out what "substantially" means.  This case is from 1988.  Do you know of more recent ones?  I would like to avoid discussions of tolerances in the spec (since often there isn't hard criteria), but I want to be confident of traversing 112, 2p.

Thanks.

[smgsmc]

Klav hit all the important points, and why it's good to use qualifiers such as "substantially" and "about."

I haven't been able to get claims with words like that past examiners for years -- 112p2.  Perhaps that's a result of working in technologies in which all things are vague and obvious (according to the Office).

But I appreciate the discussion.  Maybe I'll try putting those words back in my claims.

FWIW, I try to define measurements functionally in claims when possible.  For example, "a pipe having such a length that when [some condition exists] the pipe reaches from the first shelf to the second shelf."  In other words, any important measurements tend to exist to serve a particular purpose and I try to use that purpose in the claims.  It prevents infringement avoidance by mere adjusting of dimensions without also losing the important functionality in the accused device.

Regards.

Hi Jim, looks like I have the same Examiners as you.  With respect to claims geared to an end result, often you wind up with the same problem:  criteria to determine when the end result is attained (function is performed).  In your simplified example, the question then becomes when does the pipe reach from the first shelf to the second shelf?  What if it's shy by 1/16 inch or over by 1/16 inch?  Does it infringe?  Similarly, if I have a table with a top, a base, and four legs, I can specify the lengths of the legs such that the top is [substantially] parallel to the base.  But the problem then shifts from measurements of the lengths of the legs to measurements of degree of parallelism between the top and the base.

[khazzah]

MPEP 2100 cites ANDREW CORPORATION v GABRIEL ELECTRONICS, INC. as not requiring the spec to spell out what "substantially" means.  This case is from 1988.  Do you know of more recent ones? 

VERVE, LLC v. Crane Cams, Inc., 311 F. 3d 1116 (2002) sounds like the best, as it specifically deals with indefiniteness:

We conclude that the court erred in law, in requiring that the intrinsic evidence of the specification and prosecution history is the sole source of meaning of words that are used in a technologic context.

Anchor Wall Systems v. Rockwood Retaining Walls, 340 F. 3d 1298
(2003) is also helpful, though the issue there was claim construction and not indefiniteness.

The written description does not specify any special definition for the terms "generally," "parallel," or the phrase "generally parallel." Moreover, nothing in the prosecution history of the '015 patent family clearly limits the scope of "generally parallel" such that the adverb "generally" does not broaden the meaning of parallel. Accordingly, we hold that the phrase "generally parallel" envisions some amount of deviation from exactly parallel.

[klaviernista]

Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325 (Fed. Cir. 2010):

"On appeal, Enzo first argues that the district court incorrectly determined that the "not interfering substantially" language in the '824, '767, and '928 patents is indefinite. In Enzo's view, the specifications provide specific examples of linkage groups that do not substantially interfere with hybridization and detection, as well as general criteria for selecting suitable linkage groups. Moreover, Enzo asserts that the specification provides a test  [**15] for measuring the degree of interference, namely, comparing the thermal denaturation profile (i.e., melting temperature) of a modified polynucleotide with that of an unmodified polynucleotide.

Applera responds that the district court correctly determined that the "not interfering substantially" language is indefinite, arguing that nothing in the patents explains how to measure "interference" or how to determine whether it is "substantial." Because even a minor alteration of a single nucleotide may have profound effects on the ability of a DNA strand to hybridize, depending on the length and sequence of the strand, Applera argues that identical linkage groups may cause interference in some strands but not in others, thus rendering the claims hopelessly ambiguous.

We agree with Enzo that the claims are not indefinite. HN4"Indefiniteness requires a determination whether those skilled in the art would understand what is claimed. To make that determination, we have explained that 'in the face of an allegation of indefiniteness, general principles of claim construction apply.'" Young, 492 F.3d at 1346 (quoting Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1348 (Fed. Cir. 2005)). "In  [**16] that regard, claim construction involves consideration of primarily the intrinsic evidence, viz., the claim language, the specification, and the prosecution history." Id. When a "word of degree" is used, the court must determine whether the patent provides "some standard for measuring that degree." Seattle Box Co., Inc. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984). Similarly, when a claim limitation is defined in "purely functional terms," a determination of whether the limitation is sufficiently definite is "highly dependent on context (e.g., the disclosure in the specification [*1333]  and the knowledge of a person of ordinary skill in the relevant art area)." Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008)."

[klaviernista]

Shell Global Solutions (US) Inc. v. RMS Eng'g, Inc., 2011 U.S. Dist. LEXIS 28826   (S.D. Texas March 21, 2011)

"Shell seeks to construe the term "substantially horizontally" as "horizontal to less than 45° from horizontal." Shell cites the specification and the prosecution history as support for this construction. Shell does not propose a construction for the term "substantially vertically." Defendants have moved for summary judgment on the grounds that these two terms, as well as the terms "substantially" and "a plurality of fluid conveying arms . . . extending radially and substantially horizontally outward from the vertical axis of said fluid riser inlet conduit," are indefinite. Defendants argue that the intrinsic record does not provide sufficiently clear, if any, guidelines for determining the metes and bounds of the term "substantially," which appears in all of the other challenged terms.

Essentially we are called upon to construe the term "substantially," and if we  [*67] cannot, to hold that the use of this term renders claims 1-4 of the 318 Patent indefinite. "Indefiniteness requires a determination whether those skilled in the art would understand what is claimed. To make that determination, we have explained that 'in the face of an allegation of indefiniteness, general principles of claim construction apply.'" Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010) (quoting Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1348 (Fed. Cir. 2005). The Federal Circuit has, on several occasions, construed the term "substantially" in various contexts. See Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., 347 F.3d 1314, 1323 (Fed. Cir. 2003) (citing cases). It has instructed that, in conducting the analysis, a court should begin by determining the ordinary meaning of the claim terms to one of ordinary skill in the art. Id. The dictionary definitions provide a dual ordinary meaning of the term "substantially," one that connotes a term of magnitude ("significantly" or "considerably") and one that connotes a term of approximation ("largely" or "essentially"). Id. In order to determine which meaning should be adopted,  [*68] we turn to the intrinsic evidence.


Claim 1 states that the fluid riser inlet conduit is "oriented substantially vertically along the fluid riser inlet conduit's longitudinal axis." (col. 7 ll. 11-13.) A few lines later, it describes the fluid conveying arms as extending outward from "the vertical axis of said fluid riser inlet conduit." (col. 7 l. 17.) The shift from "longitudinal axis" in the first phrase to "vertical axis" in the second phrase indicates that the two phrases are linked, though they are not identical. When the claim instructs that the fluid riser inlet conduit should be oriented "substantially vertically" along its longitudinal axis, it is also referencing the idea that the conduit should be oriented "substantially vertically" along its vertical axis. Thus, the term "substantially," when used in conjunction with "vertically," is a term of approximation. There is no indication that the term "substantially" is being used differently when it appears in the phrase "substantially horizontally." "A word or phrase used consistently throughout a claim should be interpreted consistently." Phonometrics, Inc. v. Northern Telecom Inc., 133 F.3d 1459, 1465 (Fed. Cir. 1998) (emphasis  [*69] added). Thus, we also interpret the phrase "substantially horizontally" as a term of approximation.

The specification and prosecution history support this interpretation. The specification states:
The apparatus of the invention comprise a plurality of fluid conveying arms extending radially into the fluid mass. It will be understood that arms may extend substantially in a radius in a cross-sectional plane of the fluid mass, or may be at an angle to the cross-sectional plane, suitably at an angle of up to 60 degrees.
(col. 5 ll. 3-8.) The inventors originally submitted 16 claims to the U.S. Patent and Trademark Office ("PTO") as part of the application that would become the 318 Patent. The PTO examiner initially rejected claims 8-16. The examiner specifically rejected claim 8, which would later become claim 1 of the 318 Patent, as being "clearly anticipated by Gilliam." (Doc. No. 90 at 87.) The prior art referenced as Gilliam disclosed arms that were angled upwards at what appeared to be 45°. In response to the PTO examiner's rejection, the inventors clarified:

[klaviernista]

Continued:

The distribution arms taught in Gilliam are positioned below a catalyst bed. In contrast, in the instant claims the arms extend  [*70] into the fluid bed. This distinguishes the instant claims over Gilliam. Claim 8 is further amended to provide additional distinctions from Gilliam.

Claim 8 is amended to require the fluid conveying arms to be substantially horizontal. In Gilliam the arms extend at about a 45 degree upward angle. This is natural for the use taught in Gilliam since the hydrocarbon feed through the arms is destined for the catalyst bed above the distribution arms.
(Doc. No. 90 at 78.) The inventors modified claim 8 to include the term "substantially horizontal" as well as the terms "substantially vertical" and "vertical." It is clear from the prosecution history that the inventors had to disclaim arms that possessed "an angle of up to 60 degrees," as described in the specification, in order to avoid the prior art. In addition, the inventors disclaimed arms that were angled upwards at about a 45 degree. The inventors did not state their intent to claim arms that posses an angle of up to 45 degrees, nor did they express their intent to impart a meaning to "substantially horizontal" that would cover angles of up to 45 degrees. "Without an express intent to impart a novel meaning to claim terms, an inventor's  [*71] claim terms take on their ordinary meaning." York Prods. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed. Cir. 1996). The ordinary meaning of "substantially" as a term of approximation is "largely but not wholly that which is specified." Webster's Ninth New Collegiate Dictionary 1176 (9th ed. 1983); see also York Prods., 99 F.3d at 1573. In light of the specification and the prosecution history, the term "substantially" in the context of claim 1 is a term of approximation and retains its ordinary meaning. Thus, "substantially horizontally" should be construed as "largely, but not necessarily wholly, horizontal." "Substantially vertically" should be construed as "largely, but not necessarily wholly, vertical." 4

[klaviernista]

Continued:

We also note that the term "substantially" is a term of degree. Though a patentee need not define his invention with mathematical precision, the specification must provide "some  [*72] standard for measuring that degree." Enzo Biochem, Inc., 599 F.3d at 1332 (quoting Seattle Box Co. v. Indus. Crating & Packing Co., 731 F.2d 818, 826 (Fed. Cir. 1984)). The parties do not dispute that one bound for measuring "substantially horizontally" is 0 degrees from horizontal, while one bound for measuring "substantially vertically" is 0 degrees from vertical. However, the parties disagree over how to measure the outer bound for "substantially horizontally" and "substantially vertically." Shell argues that, in light of the specification and the prosecution history, "substantially horizontally" can include all angles up to 45 degrees from horizontal. Though Shell does not propose an outer bound for the term "substantially vertically," the consistent use of the word "substantially" in both claim terms "substantially horizontally" and "substantially vertically" means that "substantially vertically" can include angles up to 45 degrees from vertical. Defendants argue that the specification provides no meaningful standard for measuring the angle of "substantially horizontal" fluid conveying arms or the angle of a "substantially vertically" fluid riser inlet conduit.

As an initial matter,  [*73] we reject Shell's proposed standard for measuring the term "substantially horizontally" as "horizontal to less than 45° from horizontal." The specification provides a standard of measuring the arms by stating that they could be angled up to 60 degrees. However, during the prosecution history, Shell rejected this lexicography by amending its claim and inserting the term "substantially horizontal" in order to distinguish the fluid conveying arms in its patent from the arms in the Gilliam patent. At the time it amended its claim, Shell did not similarly amend the patent specification to include new lexicography that would have provided a specialized meaning to the term "substantially horizontally." Thus, on the basis of the patent specification and prosecution history, we cannot conclude that the standard for measuring the degree of "substantially horizontally" is to include angles of up to 45 degrees.

However, we are not left without any standards for measure in the patent specification. As to one set of boundaries, the specification provides illustrations of the fluid conveying arms and the fluid riser inlet conduit in Figures 2 and 5 that are preferred embodiments of each as horizontal  [*74] and vertical, respectively. As to the outer bounds of the angles of "substantially horizontally" and "substantially vertically," we believe that a person of ordinary skill in the art would be able to interpret the claims in order to arrive at an acceptable range of angles. The patent specification instructs that the present invention relates to a process and corresponding apparatus for distributing fluid into a fluid mass such that the fluid "attains uniform radial fluid distribution." (col. 1l 8.) Claim 1 requires the fluid conveying arms to extend "substantially horizontally" outward from the vertical axis of the fluid riser inlet conduit. It also requires the fluid riser inlet conduit to be oriented substantially vertically along its longitudinal axis. As Defendants' expert Dr. Zenz notes, uniform distribution of the fluid from the distribution points on the fluid conveying arms can be significantly altered by slight deviations of the fluid riser inlet conduit from a vertical position. (Zenz Decl. ¶ 11.) In addition, Dr. Zenz notes that the distribution points along the fluid conveying arms must have an equal height in the fluid mass in order to uniformly distribute the fluid  [*75] into the fluid mass. (Id.) From the patent claims, the patent specification, and Dr. Zenz's statements as a person with ordinary skill in the art, the fluid riser inlet conduit can only tilt away from its vertical axis up to a certain point. That certain point is where the fluid conveying arms no longer extend substantially horizontally outward from the vertical axis of the fluid riser inlet conduit. Moreover, the tilt of the fluid riser inlet conduit may not disturb the uniform distribution of the fluid from the fluid conveying arms, whatever the arms' horizontal angle. Though we cannot provide a precise numerical limitation to the term "substantially," we find that Defendants have not carried their burden of persuading us by clear and convincing evidence that claims 1-4 of the 318 Patent are invalid for indefiniteness. Enzo Biochem, Inc., 599 F.3d at 1335; Seattle Box Co. v. Industrial Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984).

Therefore, we deny Defendants' motion for summary judgment on indefiniteness based on the term "substantially." We construe the term "substantially horizontally" as "largely, but not necessarily wholly, horizontal." We construe the term "substantially  [*76] vertically" as "largely, but not necessarily wholly, vertical."

[klaviernista]

Aero Prods. Int'l, Inc. v. Intex Rec. Corp., 466 F.3d 1000 (Fed. Cir. 2006)

"Defendants contend that claim 12 is indefinite and that the district court had to rewrite the claim to make it valid. They argue that while there is only one seal in claim 12, the claim simultaneously requires both a "substantially hermetic seal under low pressure conditions" and a "complete hermetic seal when the valve is in the closed position." They assert that the addition of the second phrase during prosecution rendered the claim indefinite. Aero responds [**34]  that claim 12 is not indefinite because it is capable of construction.

Because, as just seen, claim 12 is capable of being construed, it is not indefinite. The term "complete hermetic seal" refers to the mechanical completeness of the seal, while the term "substantially hermetic seal" refers to the quality of the seal. During trial, Aero's technical expert, Dr. Karvelis, testified to his understanding of the claim terms. See Indefiniteness Opinion, 2004 U.S. Dist. LEXIS 12894, at *7. As the district court recognized, "[t]hese terms, when read in combination and in light of the specification of the '726 patent, would be understandable to a person of ordinary skill in the art." Id. We see no error in the district court's determination that claim 12 is not indefinite."

[klaviernista]

Anchor Wall Systems v. Rockwood Retaining Walls, 340 F. 3d 1298
(2003) is also helpful, though the issue there was claim construction and not indefiniteness.

Yes, but is not the issue of indefiniteness closely tied to the issue of claim construction? 

[khazzah]

Anchor Wall Systems v. Rockwood Retaining Walls, 340 F. 3d 1298
(2003) is also helpful, though the issue there was claim construction and not indefiniteness.

Yes, but is not the issue of indefiniteness closely tied to the issue of claim construction? 

Good point. Certainly. So much so that sometimes parties argue indefiniteness in their claim construction briefs, and courts address indefiniteness in their claim construction opinions (as the cases mentioned in this thread show).

But ... when I'm specifically arguing against an indefiniteness rejection, I'll take case law that specifically addresses "invalid for indefiniteness" over case law that talks about indefiniteness in the context of interpreting a claim.

All the cases mentioned here today look to be very relevant to the using qualifiers like "substantially". I plan to read all of them when I get time.

I think the Verve case I mentioned has a good "sound bite" potential to address OP's specific question of "what do I cite when the Examiner says my spec doesn't define substantially?" It's a short quote that's directly on point.

Thanks to all who posted.