"Judge Lourie held that 'about' failed to inform a person of ordinary skill in the art, with reasonable certainty, of the permissible deviation from the recited pH endpoints."
"The specification included several experiments that treated a 0.3 pH deviation as the working tolerance, but also discussed a commercial-scale trial that permitted 0.35 to 0.5 deviations."
"The decision indicates that type of amendment to closely skirt the prior art 'necessitates much more clarity than using the vague term 'about.'"
"The case concludes with the pithy statement: 'The prior art is almost 'about' a pH of 7.6.'"
The Federal Circuit upheld a district court ruling that invalidated most claims of U.S. Patent No. 10,912,321 due to indefiniteness under 35 U.S.C. § 112(b). The patent involved methods for treating poultry carcasses with peracetic acid, requiring a pH adjustment. The term 'about' was deemed insufficiently clear for defining permissible pH deviations. The patent's internal contradictions regarding pH tolerances contributed to its invalidation. Amendments made during prosecution lacked clarity, leading to the conclusion that vague terms necessitate more precision when skirting prior art.
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