How does the USPTO handle terms of degree in patent claims?
The USPTO handles terms of degree in patent claims by evaluating whether the specification provides some standard for measuring that degree. According to MPEP 2173.02:
“Terms of degree are not necessarily indefinite… If the specification does provide some standard for measuring that degree, a rejection is not warranted… For example, in Ex parte Oetiker, 23 USPQ2d 1641 (Bd. Pat. App. & Inter. 1992), the phrases “relatively flexible” and “of relatively high corrosion resistance” were held to be definite because the specification contained a general guideline and examples sufficient to enable a person of ordinary skill in the art to determine the scope of the claims.”
When examining claims with terms of degree, the USPTO considers:
- Whether the specification provides a standard for ascertaining the requisite degree
- Whether one of ordinary skill in the art would understand what is claimed in light of the specification
- The context of the term within the claim and the invention as a whole
If the meaning of the term is reasonably clear to those skilled in the art, the term is likely to be considered definite.
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