Jfn tbe mntteb ~tates Boeing asserts that "generally vertical" and "generally perpendicular"
do not have any art-recognized meanings nor do the AATI patents define or use these terms in the
specification. JBR at 109, 112. Therefore, these terms are "completely subjective ... with no
meaning that would permit a party to determine whether one falls within or outside the scope of
the claim." JBR at l 09. It is irrelevant that the word "generally" is used in claim drafting. Boeing
PIIMB at 33. The fact is, AATI intentiona lly "injectled] ambiguity into [the] claims" and "opted
to create an impermissible 'zone of uncertainty.,,, Boeing PHMB at 33, 34 (quoting Nautilus, 134
S. Ct. at 2 129). AATI "could have provided the necessary notice to the public" by "speciflying]
a particular range within which purported invention worked ... [or] giv[ing] examples of variations
which fell within or outside of the scope of 'generally vertical' or 'generally perpendicular."'
Boeing PHMB at 34.
AATI responds that "there is ample support in the intrinsic evidence for a skilled artisan to
understand the term 'generally."' AATI Resp. at 47, 49. "[T]he plain and ordinary meaning to a
person of ordinary skill in the art must control," because "[t)he applicant did not act as his own
lexicographer with respect to [the tenns]." AATI PHMB at 47, 48. Moreover, the specification
supports a plain and ordinary meaning of "generally." AATI Resp. at 48 (referencing the non-
perfectly vertical and horizontal lines in Figures 5 and 21 of the patent). In addition, "[t]he
prosecution history of the '306 patent provides further support [that] ... (t]he Examiner had no
confusion- he knew what 'generally' meant and used it himself.» AATI Resp. at 48 (referencing
AATI Resp. at A3 -107 (citing the Examiner' s notes that the U.S. Patent No. 2,552,115 reference,
"discloses at least one 'generally' verticall y down slanted line (fig 1) ... 'generally' perpendicular
to said leading edge at an intended point of interception")).
Finally, AATT faults Boeing for "attempt[ing] to impose unrealistically rigid standards [by
requiring absolute mathematical precision]" and opposes Boeing's suggestion that "terms of
degree (li ke 'generally') arc inherently indefinite without precise numerical boundaries," arguing
26
that " Boeing's arguments run afoul of controlling precedent." AATI Resp. at 49, 50 (citations
omitted). It is well known, "' [g]enerally' is a term used in claiming to avoid mathematical
exactness," JBR at 108, 11 l, and "a skilled artisan would understand 'generally' as a term of
approximation [that simply means 'close to' ]." AATI Resp. at 48, 49 (citing Cumming Deel.~
80). Therefore, "[a]fter reviewing the intrinsic evidence, a skilled artisan would understand that
the claims recite the objective of having the wing perpendicular to a vertical arrestment line ....
He would also understand, however, that achieving a perfect 90-degree angle between the line and
wing would not be feasible." AAT1 Resp. at 48, 49 (citing Cumming Deel. ii 80).
b. The Court's Ruling
AATI and Boeing appear to agree that AATf 's patents do not define nor give any special
meaning to the terms "generally vertical" and "generally perpendicular. " AATI PHMB at 47, 48
(AATI stating that "l tjhc applicant did not act as his own lexicographer."); see also Boeing PHMB
at 35 (Boeing arguing that "absent any guidance or explanation . .. the terms ' generally vertical'
and 'generally perpendicular' are vague and ambiguous"). Therefore, the plain and ordinary
meaning to a person of skill in the art controls. See InterDigital, 690 P.3d at 1324 ("The plain
meaning of claim language ordinarily controls unless the patentee acts as his own lexicographer
and provides a special definition for a particular claim term or the patentee disavows the ordinary
scope of a claim term either in the specifi cation or during prosecution.").
The United States Court of Appeals for the Federal Circuit has held that the term
''substantially centered" was definite in the light of an example disclosed in the specification
illustrating the meaning and usage of "substantially." See Apple, 786 F.3d at 1003. Similarly, in
this case, the non-perfectly vertical and horizontal lines in Figures 5 and 21 of the '306 patent
reasonably illustrate the meaning and usage of "generally vertical" and "generally perpendicular."
Therefore, a skilled artisan would not be confused about the scope of the claim. See interval
Licensing, 766 F.3d at 1370 ("Claim language employing terms of degree has long been found
defi nite where it provided enough certainty to one of skill in the art when read in the context of
the invention."); see also Georgia-Pac. Corp. v. U.S. Plywood Corp., 258 F.2d 124, 136 (2d Cir.
1958) ("If the claims, read in the light of the specifications, reasonably apprise those skilled in the
art both of the utilization and scope of the invention, and if the language is as precise as the subject
matter permits, the courts can demand no more.").
In addition, the terms "generally vertical" and "generally perpendicular" are as precise as
the subject matter requires. For example, the specifi cation discloses the objective of having the
wing perpendicular to a vertical arrestmcnt line. '306 patent, col. 9:44-46 ("the wings at a
favo rable more perpendicular angle to the tow line 4 fo r the largest capture envelope"); see also
' 306 patent, col. 11:14- 18 ("Arrestments can be made with the vehicle intersecting the tow line 4
or secondary arrestment lines 20, 21 approximately perpendicular (which is the preferred
approach) or approximately parallel or somewhere in between."). The phrases "approximately
perpendicular," "favorable more perpendicular," and "generally perpendicular," are used
interchangeably to inform a skilled artisan that achieving a perfect 90-degrcc angle between the
line and the wing is not intended.
Moreover, Boeing offered no evidence that a skilled ru1isan would find these terms lacking
reasonable certainty. The Examiner was not confused and used the terms during prosecution.
27
AATl Resp. at A3-l 07 (the Examiner arguing that the U.S. Patent No. 2,552, 115 reference,
"discloses at least one 'generally' vertically down slanted line (fig 1) ... 'generally' perpendicular
to said leading edge at an intended point of interception. Moreover, "words of approximation,
such as "generally" and "substantially," arc descriptive terms commonly used in patent claims to
avoid a strict nwnerical boundary to the specified parameter." See Anchor Wall Sys., Inc. v.
Rockwood Retaining Walls, Inc., 340 f.3d 1298, 1310-11 (Fed. Cir. 2003) (internal citation and
quotation marks omitted). Moreover, the law does not require "absolute precision," or a particular
range in place of a word of close proximity such as ''generally." See Rosemount, Inc. v. Beckman
Instruments, Inc., 727 F.2d 1540, 1546-47 (Fed. Cir. 1984) ("Beckman attacks the claims as
indefinite, primarily because "close proximity" is not specifically or precisely defined. . . . [T]o
accept Beck.man's contention would turn the construction of a patent into a mere semantic quibble
that serves no useful purpose.") (internal citation and quotation marks omitted).
Nevertheless, assuming, argu,endo, the claim could have been written with greater
precision, by specifying a particular range within which the invention worked, that does not affect
the determination of definiteness, because the test is whether these terms would inform a skilled
artisan with reasonable certainty about the scope of the invention. Moreover, whether a 50-degree
or 60-degree angle falls outside of the scope of "generally vertical" or "generally perpendicular,"
is an issue of infringement, not claim indefini teness. See WL. Gore & Associates, Inc. v. Garlock,
Inc., 842 F.2d 1275, (Fed. Cir. 1988) (holding that an "imprecise claim limitation, such as the
phrase 'about 100% per second' does not impart invalidity to the claims, but is to be considered in
determination of infringement).
Finally, Boeing's expert opined that, "the term 'generally' is susceptible to multiple
reasonable interpretations, and thus without further guidance, one of ordinary skill in the art would
not be reasonably certain as to the meaning of' generally vertical' and 'generally perpendicular."'
Hansman Deel.~ 79. But, Or. Hansman focused his inquiry on the abstract meaning of the word
"generally," rather than on the meaning of claim terms within the context of the patent.
For these reasons, the court has determined that the terms "generally vertical" and
"gcnera!Jy perpendicular," are not indefinite.
4. Claims 1, 21: "Outboard Portion"
The term "outboard portion" is discussed earlier herein. '729, Claim 44 "Outboard
Portion" Analysis, supra at (IV)(A)(3).
28
5. Claims 1, 21: " Reliably ... Attach/Deflect"
Claim Language:
• "said hook being constructed and proportioned to intercept an arrestment line and
reliably and releasahly attach said aircraft to said arrestment line"
• "lateral defecting structure constructed and arranged to reliably deflect the arrestment
line''
The Parties Asscrtine Jndefiniteness: Government & Boeing
The Court's R ulin g: Indefinite
a. The Parties' Arguments
The Government argues that "reliably" is a subjective term, amenable to multiple
interpretations, and inherently ambiguous, because there is no intrinsic evidence that provides
clarifying gui dance about an acceptable range of "reliability." Gov't PHM B at 29. The
Government adds tha.t the dictionary definition that AATI proffers, i.e. , "able to be trusted to do
or provide what is needed: able to be relied on," is equally subjective. Gov't PHMB at 30. What
J\A TI is seeking is a construction that w ill allow it to reach devices that may not perform their
intended function every time. Gov' t PHMB at 30.
Boeing agrees with the Government that the term "reliably" is vague, the dictionary
definition does nothing to resolve the ambiguity, and there is no intrinsic evidence that defines the
term. Boeing PHMB at 30.
AATI counters that a skilled artisan would readily appreciate that the term "reliably" allows
for the possibility that attachment or deflection may not occur every time, but instead with
sufficient frequency, to be expected fro m a successful retrieval system. AATI Resp. at 32-33.
The term " reliably" appears in over four million patents and published applications and at least
one prior com1 has been able to construe the term without confusion, even though the term had not
previously appeared in the specification. A i\TI Resp. at 33. «Reliably" simply means that in the
claimed system, the UA V would not bounce off the arrestmcnt line or drop off the arrestmcnt
system. AATI Resp. at 34.
h. The Court's Ruling
Claim language employing terms of degree arc definite, if the claim provides reasonable
certainty to one of skill in the aii, when read in the context of the invention. See Interval Licensing,
766 F.3d at 1370. When a word of degree is used, the court must determine whether the patent
provides "some standard for measuring that degree." Nautilus, 783 F.3d at 1378 (remand).
Specific and unequivocal examples may be sufficie nt to provide a skilled artisan with clear notice
of what is claimed. See DDR Holdings, 773 F.3d at 1260 (citing Enzo Biochem, Inc. v. Applera
Corp., 599 F.3d 1325, 1334-35 (Fed. Cir. 2010) (holding that the phrase "not interfering
substantially" was definite, where the intrinsic evidence provided multiple examples that would
allow a skilled artisan to determine whether a particular chemical bond linkage group would
"interfer[e J substantially" with hybridization)).
29
The '306 patent, however, provides no guidance for ascertaining when the system performs
"reliably" nor examples of the system preforming "reliably," as opposed to unreliably. As Boeing
points out, the dictionary definition that AA TT provides is circular and does little to address
ambiguity. Boeing PHMB at 30. Although AATI points to Nuance Commc 'ns inc. v. Tellme
Networks Inc., 707 F. Supp. 2d. 472, 489 (D. Del. 2010), where a trial court construed the word
"reliably," in that case, the defendant never challenged the term "reliable" as indefinite. More
recently, in Bayer Intellectual Prop. GmbH v. Warner Chilcott Co., LLC, No. 12-1032-GMS, 2015
WL 1849015, at* 1- *4 (D. Del. April 2 1, 2015), the same trial court held a claim indefinite, where
it contained words of degree such as- "high," "low," " satisfactory," and " reliable"-without more
specificity in the intrinsic record. That is the same prob lem in this case, because the intrinsic
record of the '306 patent provides no standards by which one skilled in the art can ascertain the
scope of the claims with reasonable certainty.
For these reasons, the court has dete1mined that "reliably attach" and "reliably deflect" are
indefinite.
6. Claims 1, 21: " Kept Clear Of The Intended Flight Path"
Claim Language: "said support for said anestment line being kept clear of the intended flight
path of the aircraft"
The Parties Asscrtine Indefiniteness: Government & Boeing
The Court's R uling: Indefinite
a. The Parties' Arguments
The Government argues that "kept clear" is a term of degree, subject to multiple reasonable
interpretations, and is not clear as to how much separation must be present between the supporting
structure and the " intended flight path" to meet the limitation. Gov't PHMB at 30. Tn addition,
the claim uses a variable reference point, i.e., ''intended flight path." Gov' t PllMB at 31. Because
there could be multiple "intended flight paths," defining the structure by reference to "intended
flight paths" provides no meaningful guidance. Gov' t PHMB at 30- 31. A single supp01t structure
and arrestment line configuration either could be infringing or not, based on the "intended flight
path" and whether the arrestment line is "kept clear" of the support structure when the aircraft
approaches from that path. Gov't PHMB at 31. The Government also points out that in a prior
version of the '729 patent, claim 26 was more specific as it stated "suspension of the fixture is kept
clear of said flight path by a distance greater than the height or width of said flying object." Gov't
PHMB at 31.
Here, however, the specification neither defines "kept clear" nor provides examples to
show a configuration that is "kept clear" and one that is not "kept clear." Boeing adds that it is
unaware of any art-recognized definition of "kept clear." Boeing PHMB at 35.
AATl counters that no construction is needed for the phrase "kept clear" of the "intended
fli ght path," because both terms have a plain and ordinary meaning. AATI Resp. at 36. Based on
the dictionary definition of "clear"- " free from entanglement or contact"- in the context of the
invention, "kept clear" simply means that the support for the arrestment line is maintained ("kept")
free from contact ("clear") with the aircraft. AATI Resp. at 3 6. AATl also argues that '