2 opinions in the patent, trademark, design patent, and trade dress categories. Rule 36 affirmances and non-IP dispositions excluded.
In In re BadgeCert, Inc., the Federal Circuit dismissed the appeal from the Patent Trial and Appeal Board in Application No. 16/113,597 under Federal Rule of Appellate Procedure 42(b) by agreement of the parties. Each side was ordered to bear its own costs.
Panel: Lourie, Prost, Burroughs
The Federal Circuit affirmed the Eastern District of Arkansas's holding that claims 1–3, 5–12, 14–19, 21–24, 26–29, and 31–33 of Enviro Tech Chemical Services, Inc.'s U.S. Patent No. 10,912,321—directed to methods for treating poultry carcasses with peracetic acid at specified pH levels—were invalid as indefinite under 35 U.S.C. § 112(b). The district court found two claim terms indefinite, but the Federal Circuit affirmed solely on the ground that the term "about" in the limitation requiring adjustment "to a pH of about 7.6 to about 10" failed to inform those skilled in the art with reasonable certainty of the claim's scope under Nautilus, Inc. v. Biosig Instruments, Inc. The claims, specification, and prosecution history provided no consistent guidance: the specification's experimental examples tolerated pH deviations ranging from 0.3 to 0.5 from target values without explaining which applied, and Enviro Tech inconsistently argued patentability during prosecution by sometimes including "about" and sometimes omitting it when distinguishing prior art at pH 7.0—nearly "about" the claimed lower bound of 7.6.
The decision underscores the heightened scrutiny terms of degree face when claims are narrowed during prosecution to avoid close prior art. Where a specification discloses a broad pH range (6–10) but prosecution amendments distinguish prior art at pH 7.0 by claiming "about 7.6," the Federal Circuit demands that the intrinsic record clearly define the permissible deviation, particularly given that indefiniteness under § 112(b) requires reasonable certainty about claim scope. The court's emphasis on inconsistent prosecution statements as compounding indefiniteness—where Enviro Tech alternately treated "about" as material or immaterial when arguing non-obviousness—signals that patentees cannot rely on ordinary dictionary meanings of approximation terms when the technological context and claim amendments create meaningful boundary questions. The ruling confirms that a term of degree surrounded by conflicting specification examples and unexplained prosecution behavior cannot satisfy Nautilus, even where some specification data might suggest a numerical threshold.