Judge Pauley Rules “About” Means “Approximately”, Maybe!

On September 19, 2017, United States District Court Judge William H. Pauley (S.D.N.Y.) issued a claim construction ruling on the word “about” across two patents directed to topical compositions containing naftifine.  Both the patent holder (“Sebela”) and the alleged infringer (“Taro”) sought claim construction for that term in the phrase “about 0.17 wt% trolamine.”  This phrase was in claim 17 of U.S. Patent 8,778,365 (“the ’365 patent”) and claim 21 of U.S. Patent 9,161,914 (“the ’914 patent”). 

Sebela wanted the construction of “about” broadly to include 0.15 %wt trolamine and capture Taro’s accused product.  Not surprisingly, Taro wanted to construe the term “about” narrowly and limit it to a variance of .005 wt%.  Judge Pauley ruled that the numerical boundaries provided by both parties were not supported by the evidence.  “While the intrinsic evidence suggests that the term ‘about’ means ‘approximately,’ it says nothing about ‘what numerical range is meant’ by that word.”  Therefore, Judge Pauley ruled that “about” means “approximately” and will leave the determination of whether Taro’s product reads on the patent to the finder of fact.

The case is Sebela International Ltd. v. Taro Pharm. U.S.A., No. 15-cv-3720 (S.D.N.Y. Sept. 19, 2017) in the Southern District of New York.