Application Serial No. 13/789,575, directed to hair removal with nanoparticles.
In an interference, the claim of a patent recites 109 to 1023 particles per ml to induce thermal damage (page 2). The claim of the application recites “about 6.6×1011 particles” where about is a 10% range, resulting in 5.94×1011 to 7.26×1011 particles per ml (pages 2-3). The specification taught about to be 10%, 9%, 8% . . . . down to 0.01%, so the boards use of 10% is supported (pages 4-5). The specification teaches various optical densities, then when converted to particles per ml give seven different values, none of which are 6.6×1011 (page 5). Disclosure of a broad range of values does not provide written description support of a particular value in the range (pages 5-6). Overlap of one of the disclosed values and the claimed value based on the disclosed 10% tolerance does not change a failure of written description of the recited range (pages 6-7).
Hindsight: Using many different options for a hedge word (e.g., “about”) in the specification may allow the bad guys to cherry pick the meaning. It may be better to identify a range that is likely based on a real-world consideration, such as operability and/or manufacturing tolerance. For written description, the claim may be restricted to a disclosed genus or a disclosed species. Trying to broadly indicate all values in between as a way to recite all species of the genus may not work. Thus, it may be better to recite a variety of likely options.