The CAFC addresses Grammatical Ambiguity in Organik Khimya

Grammatical Ambiguity

Organik also argues that the ’435 specification provides an open-ended definition of “swelling agent,” and that the Board improperly adopted the narrower of two possible constructions of a “grammatically ambiguous passage.” Organik Br. 34. Organik argues that the broader construction of any ambiguity is required by law, citing In re Cuozzo Speed Technologies, LLC, 793 F.3d 1268, 1275-79 (Fed. Cir. 2015), aff’d sub nom. Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016), as authorizing the broadest reasonable construction in PTO examination practice. The asserted ambiguity is in the following passage in the specification:

Suitable swelling agents include, are those which, in the presence of the multistage emulsion polymer and monomer, are capable of permeating the shell and swelling the core. Swelling agents may be aqueous or gaseous, volatile or fixed bases or combinations thereof.