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“Near” Not Indefinite if Adequately Defined

Jul.03.2007

In Young v. Lumenis, Inc. (No. 06-1455; Fed. Cir. 2007), a Federal Circuit reverses a district court decision and holds that the term “near” is not indefinite in view of the specification.

In finding the patent claim indefinite under Section 112, second paragraph, the district court relied on prior case law for the principle that a word of degree, such as “near,” can be indefinite when it fails to distinguish the invention over the prior art and does not permit one of ordinary skill to know what activity constitutes infringement. However, the Federal Circuit distinguishes that case law, finding that the intrinsic evidence here provides ample guidance on the meaning of “near.” Unlike a situation in which “at least about” precedes a term that was defined in the specification only by a broad range, the Young panel finds that the patent specification describes a narrow window within which to practice the claimed method and, in that unique context, the term “near” adequately notifies the public as to what conduct will constitute infringement.

[http://www.fedcir.gov/opinions/06-1455.pdf]

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