concurring.
I concur in the court’s decision to remand this case for further proceedings and in much of the court’s analysis. I agree with the court that the evidence indicates that the term “amorphous” was understood at the time of the application to mean “lacking in long-range order,” although my conclusion is based on the totality of the evidence presented to the district court and not principally on the Polk patent, which is cited in the '686 patent only in the “references cited” section, and which was referred to in the prosecution history not for definitional purposes but in connection with the issue of obviousness. I also agree with the court that defining “amorphous” alloys as “lacking in long-range order” is not sufficient, without more, to determine whether Ovonic’s accused products infringe; the court properly holds that the district court will have to determine with more specificity what “long-range order” denotes, and thus what structures fall within the scope of the asserted claims of the '686 patent. Finally, I agree with the court in rejecting Dr. Kumar’s argument that the terms “partially crystallized” and “metastable crystalline,” as used in the '686 patent, are mutually exclusive, and that the claim term “amorphous” must be understood to include all alloys that are “partially crystallized” as well as those that are “totally amorphous.”
Although I agree that a remand is necessary, I would expand the scope of the remand in one respect. The specification expressly defines the term “amorphous” as “characterized by random atomic orientation.” The court concludes that that definition is not meaningful because it lacks specificity. But that is not a sufficient reason to disregard the definition altogether. The definition of “amorphous” as “lacking in long-range order” also lacks specificity standing alone, which is why a remand for supplementation of that definition is necessary. And the “random atomic orientation” definition has an advantage over the “long-range order” definition, in that the former is specifically referenced in the patent, while the latter is not. Accordingly, I would include within the scope of the remand the task of determining whether, to persons skilled in the field of amorphous solids, the phrase “random atomic orientation” is indicative of a particular class of structures. It may turn out that the phrase “random atomic orientation” is too indefinite to provide any significant guidance as to the bounds of the claim *1374term “amorphous.” But if there was a general understanding in the field as to the meaning of that phrase at the time of the application, it should be employed, along with the general understanding of the meaning of “lacking in long-range order,” as a basis for construing the critical language of the asserted claims.