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

[Patent Lawyer]

Thanks for this and other responses.

I think the correct (low risk) approach is to rewrite the claims without the term “and/or”.
Why risk some weird Federal Circuit interpretation?

I won’t say that “and/or” is a lazy way of writing, because I do it all the time and I know exactly what it means and what I mean.  But the Federal Circuit has changed the rules of English grammar before.
I’ll just take the issue off the table.  (The claims are already being amended for other reasons.)

Also, this application was written outside the US and there is no option to add something now to the specification explaining what “and/or” means.

Again, thanks to all for responses.


From: Patentpractice <patentpractice-bounces at oppedahl-lists.com> on behalf of Alan Taboada via Patentpractice <patentpractice at oppedahl-lists.com>
Reply-To: "For patent practitioners. This is not for laypersons to seek legal advice." <patentpractice at oppedahl-lists.com>
Date: Friday, December 1, 2023 at 12:35 PM
To: "For patent practitioners. This is not for laypersons to seek legal advice." <patentpractice at oppedahl-lists.com>
Cc: Alan Taboada <ataboada at mtiplaw.com>
Subject: Re: [Patentpractice] The use of "and/or" in claims

Not sure about a case citation, but the following is my view on this matter.

There mght be situations where it doesn’t work out this way, but without further information, I think examiner might be correct on this one.

In general, “A and/or B” covers claim scope of “A and B” and “A or B” so any prior art that shows either would be relevant to the claim.

Generally speaking, “A or B” is typically broader than “A or B” (again, we do not know the exact claim language, but I think that typically this would be the case).

Since the examiner only needs to meet the limitations of either one of A or B to read on the claim limitation, then the examiner will (rightly) construe the claim more broadly and not worry about having to find art that shows both A and B.



From: Patentpractice <patentpractice-bounces at oppedahl-lists.com> On Behalf Of Patent Lawyer via Patentpractice
Sent: Friday, December 1, 2023 11:04 AM
To: For patent practitioners. This is not for laypersons to seek legal advice. <patentpractice at oppedahl-lists.com>
Cc: Patent Lawyer <patentlawyer995 at gmail.com>
Subject: [Patentpractice] The use of "and/or" in claims

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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