“ABOUT” MEANS WHATEVER THE FEDERAL CIRCUIT WANTS IT TO; BUT IT MAY ELIMINATE THE DOCTRINE OF EQUIVALENTS

Cohesive Technologies, Inc., v. Waters Corporation, [2008-1029, -1030, -1031, -1032, -1059] (October 7, 2008) [LINN, Mayer, Prost] The Federal Circuit held that "about"
DISCUSSION: Cohesive brought three related actions accusing Waters of infringing U.S. Patent Nos. 5,772,874 and 5,919,368.
As to infringement, the Federal Circuit determines the ordinary and customary meaning of undefined claim terms as understood by a person of ordinary skill in the art at the time of the invention, using the methodology in Phillips v. AWH Corp., 415 F.3d 1303, 1312-19 (Fed. Cir. 2005) (en banc). The court looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean. Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.
The Federal Circuit rejected the argument that the patentee had limited the claims by argument, finding that the patentee distinguished the particular polymers in the reference, and not all polymers. The Federal Circuit further rejected the argument that the patentee had disclaimed all divinylbenzene thereby excluding the accused product which was an 80% divinylbenzene copolymer. The Federal Circuit wryly noting that if a patentee disclaims “flammable substances like hydrogen” during prosecution, the patentee has not disclaimed the nonflammable compound H2O, just because it is two-thirds hydrogen.
The Federal Circuit also held that the district court erred by granting judgment as a matter of law on the issue of anticipation before the jury was allowed to consider the claim. The district court did not make a finding that no reasonable jury could conclude that the asserted references anticipated. Rather, the district court itself characterized the anticipation case as “iffy.” The Federal Circuit said that an “iffy” anticipation case, however, does not foreclose a favorable verdict. The Federal Circuit expounded that while anticipation was the epitiome of obviousness, the two are distinct. Among other things, the Federal Circuit pointed out that secondary considerations were a part of an obviousness determination, but not anticipation.
On the issue of inequitable conduct, the Federal Circuit stated that to prove the intent prong of inequitable conduct, the accused infringer must prove by clear and convincing evidence that the material information was withheld with the specific intent to deceive the Patent Office. The Federal Circuit noted that there was no independent evidence of specific intent to deceive, and that the district court specifically credited the testimony of the prosecuting attorneys that they did not regard the misstatements in the expert’s declaration as material.
Regarding infringement of the 25µm columns, the Federal Circuit noted that all of the asserted claims of both patents included limitations requiring in effect that the column particles have average diameters “greater than about 30 μm”. The patentee maintained that the 25µm columns had an average particle size of 29.01 μm, while the accused infringer maintained that they had an average particle size of 25.22 or 25.16 μm. The district court construed the claim language to exclude 29.01 μm particles. The Federal Circuit said that although it is appropriate for a court to consider the accused device when determining what aspect of the claim should be construed, it is not appropriate for the court to construe a claim solely to exclude the accused device. The Federal Circuit also criticized the district court’s claim construction for reading out the qualifier “about”. The district court stated that it did not hesitate in construing about 30 microns to exclude a magnitude of 29.01 microns, because the patentee could have applied for a patent that included particles of “greater than 29 microns” if that is what it had intended. The Federal Circuit responded that the patentee likewise could have drafted the limitation as “greater than 30 μm”—rather than “greater than about 30 μm”—if it had intended the narrow scope that the district court gave to the claim.
The Federal Circuit explained that when “about” is used as part of a numeric range, the use of the word “about,” avoids a strict numerical boundary to the specified parameter. Its range must be interpreted in its technologic and stylistic context. In determining how far beyond the claimed range the term “about” extends the claim, one must focus on the criticality of the numerical limitation to the invention. In other words, one must look to the purpose that the “about 30 μm” limitation serves, to determine how much smaller than 30 μm the average particle diameter can be and still serve that purpose. It is the purpose of the limitation in the claimed invention—not the purpose of the invention itself—that is relevant. Examining the specification, the Federal Circuit determined that about 30 could not include 20, which was found to be unsatisfactory. The Federal Circuit also noted that 42.39 μm was considered to be about 50. This represented an acceptable variance of at least 15.22% from the 50 μm nominal diameter. The Federal Circuit said it was reasonable to conclude that “about 30 μm” encompasses at least a 15.22% variance from 30 μm. Thus, “about 30 μm” should encompass at least 30 μm ± 15.22%, i.e., between 25.434 μm and 34.566 μm. The Federal Circuit applied the same construction to about 20 μm, and concluded that the proper construction of “greater than about 30 μm” in claim 1 of the ’874 patent is either (1) greater than 25.434 μm, or (2) both greater than 23.044 μm and of sufficiently large size to assure that the column is capable of attaining turbulence.
The Federal Circuit held that the patentee was not entitled to expansion under the Doctrine of Equivalents, noting that by electing to include the broadening word “about” in the claim, the patentee has in this case already captured what would otherwise be equivalents within the literal scope of the claim.