Knobbe Martens
Aug 28, 2019

Terms of Degree with Objective Boundaries Are Not Indefinite


Before Wallach, Hughes, and Stoll.  Appeal from United States International Trade Commission.

Summary: A term of degree is not indefinite so long as the written description provides objective boundaries.

Aspen Aerogels, Inc. (“Aspen”) filed a complaint with the International Trade Commission alleging that Guangdong Alison Hi-Tech Co. (“Alison”) was importing certain composite aerogel insulation materials that infringe Aspen’s patents.  Alison argued Aspen’s claims were invalid as indefinite because they contained the phrase “lofty . . . batting.”  The ALJ rejected this argument and construed the phrase to mean “[a] fibrous material that shows the properties of bulk and some resilience (with or without full bulk recovery),” a definition taken directly from the specification.  The ALJ noted that the “bulk” and “resilience” aspects were further explained in the specification.  Upon Alison’s petition, the Commission affirmed the ALJ’s construction and declined to review the ALJ’s indefiniteness determination.  Alison appealed to the Federal Circuit. 

On appeal, Alison argued that “lofty . . . batting” is an indefinite term of degree that lacks a precise boundary.  While the Federal Circuit agreed that “lofty . . . batting” is a term of degree, the panel concluded that the written description provides sufficient objective boundaries to avoid indefiniteness.  Thus, the Federal Circuit affirmed the Commission’s finding that the claims were not indefinite and, having rejected Alison’s remaining invalidity arguments, affirmed the Commission’s final determination.              

Editor: Paul Stewart

Written by: Ari Feinstein & Christie Matthaei