[Patentpractice] The use of "and/or" in claims

[Bryan McWhorter]

There are enough cases around this that there is a Wikipedia entry:
https://en.wikipedia.org/wiki/And/or#Legal_criticism

So long as the examiner is taking 'or' to be non-exclusive (i.e., such that
'A, B, or C' also encompasses combinations thereof), then I think there is
no issue.  If they are taking a different view, then they are improperly
ignoring words of the claim.  To avoid this debate, I typically use a
qualifier ("at least one of A, B, or C") along with an explicit statement
in the specification that this encompasses combinations thereof.

While we're at it, let's discuss that 'and/or' can mean 'and' or 'or'
(obviously); per the above, 'or', in a non-exclusive sense, can mean 'and';
and CAFC case laws says that sometimes 'and' can mean 'or'! (Kaufman v
Microsoft, 34 F.4th 1360, 1373 (Fed. Cir. 2022)).

What fun claim drafting is.

On Fri, Dec 1, 2023 at 8:04 AM Patent Lawyer via Patentpractice <
patentpractice at oppedahl-lists.com> wrote:

> We've seen this before, but I cannot find the discussion.
>
>
>
> In an office action, an examiner writes:
>
>
>
> *All claim limitations that include "and/or" are interpreted as "or".  If
> applicant disagrees with this interpretation, they are invited to amend the
> "and/or" to "and".*
>
>
>
> I believe the examiner is wrong!  And I will point that out.
>
>
>
> BUT I recall that there was some case that discussed this.
>
> I would appreciate a pointer to a case or other reference discussing this
> issue.
>
> Thanks in advance.
> --
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