Dans l’arrêt Young v. Lumenis, Inc. (June 26, 2007), la Federal Circuit a renversé une décision selon laquelle une revendication était indéfinie parce qu’elle incluait le mot “near” dans ce qui suit: “forming a first circumferential incision in the epidermis near the edge of the ungual crest of the claw”.
Selon le juge:
That language implies that an incision is made in the epidermis somewhere close to or at the edge of the ungual crest. As used in the claim, the term “near” is not insolubly ambiguous and does not depart from the ordinary and customary meaning of the phrase “near” as meaning “close to or at” the edge of the ungual crest [15 below].
Moreover, because the term “near” describes a location on an animal, its use, as opposed to a precise numerical measurement, is not inappropriate because the size of the appendage and the amount of skin required to be incised will vary from animal to animal based on the animal’s size. Akin to the term “approximately,” a person having ordinary skill in the art would know where to make the cut; thus the use of the word “near” does not deprive one of ordinary skill from being able to ascertain where the cut should be made.