At least one

[Examinerguy]

I've heard smart people suggest that "or" is always ambiguous, but I think that's silly.  Can anyone truly and honestly say that, if I asked them to go get me one or more pencils, they wouldn't be able to comply with my instructions because they're confusing?

I suppose that for some inventions, the quantity might matter. One scenario is if you had a group of machines working together to perform a task (load-balancing) and the claims said, "one or more machines..." In other words, would the load-balancing process work with one machine? If so, the system probably wouldn't be load-balancing.

[JimIvey]

I suppose that for some inventions, the quantity might matter. One scenario is if you had a group of machines working together to perform a task (load-balancing) and the claims said, "one or more machines..." In other words, would the load-balancing process work with one machine? If so, the system probably wouldn't be load-balancing.

That may be true, but the meaning of "one or more" is clear. 

Whether "one or more" ought to be "two or more" or something else is a different issue (although perfectly legitimate and probably also a 112 issue) and depends on the specifics of the case.

Regards.

[klaviernista]

It seems to me that "a" and "at least one" in my example claim are equivalent. 

I always use "at least one" when I want a claim to indicate that "one, or more than one" of a particular element may be present.  Notwithstanding the caselaw you cited, I feel that the term "a" is not at all synonymous with "at least one."  To me, the meaning of "a" tracks better with "one" because it connotes a single element, as opposed to a single or a pluralty of elements, i.e., "at least one." 

So, in my view, arguing that the term "a" means "one, or more than one" introduces an ambiuguity into the claim language which would require resolution by a court in a markman hearing.  Using the term "at least one" largely avoids that issue, with little to no alteration (hopefully) to the applicants intended meaning.

[JimIvey]

So, in my view, arguing that the term "a" means "one, or more than one" introduces an ambiuguity into the claim language which would require resolution by a court in a markman hearing.  Using the term "at least one" largely avoids that issue, with little to no alteration (hopefully) to the applicants intended meaning.

Really?  What's the difference between "one, or more than one" and "at least one"?  I can't think of any quantity that belongs to one and not the other.  Am I missing something?

Regards.

[klaviernista]

So, in my view, arguing that the term "a" means "one, or more than one" introduces an ambiuguity into the claim language which would require resolution by a court in a markman hearing.  Using the term "at least one" largely avoids that issue, with little to no alteration (hopefully) to the applicants intended meaning.

Really?  What's the difference between "one, or more than one" and "at least one"?  I can't think of any quantity that belongs to one and not the other.  Am I missing something?

Regards.

My intended point is that the term "a" does not have the same meaning as "one, or more than one," and likewise, "at least one."  I agree that there is no meaningful distinction between "at least one" and "one, or more than one." 

[JimIvey]

I see.  Thanks for clarifying.

Regards.

[ChrisWhewell]

Really?  What's the difference between "one, or more than one" and "at least one"?  I can't think of any quantity that belongs to one and not the other.  Am I missing something?

Regards.

I think the difference between the two is, that one is more likely to get the Applicant a 112 than the other, having seen instances where an Examiner objected to "one, or more than one" claiming that it is not clear whether the claim covers the case in which one "whatever" is present, or the case where more than one "whatever" is present.  I wouldn't necessary agree with such a rejection and would say it covers both, and might easily argue around it - or not, depending of context,  and the judgement of the Examiner to some extent.  That's about the only difference I can think of.

[JimIvey]

I think Klav was saying that "a widget" could be interpreted as either "exactly one widget" or "one or more widgets".  As we discussed much earlier, the law favors the latter but the former is a possible interpretation depending on the full context of the file history.

My opinion is that "exactly one widget or more than one widgets" in a claim is adequately clear and unambiguous.  To illustrate this, imagine that I open my wallet and instruct a random bystander to take "exactly one dollar or more than one dollar" from it.  Do you think you can watch the bystander and reasonably determine whether they've complied with my instructions?  Could reasonable people disagree as to whether the bystander complied with my instructions?

I think it would be very easy to determine whether the bystander complied with my instructions and I don't think reasonable people could disagree about that.

Regards.

P.S.  Remember that "OR" is such a clearly defined construct that even computers can evaluate it.

[ChrisWhewell]

I think Klav was saying 

The answer depends on the contents of your wallet at the time of the offer 

Seriously though, I agree with your position, no question.

I had to think one or more seconds to come up with that sole difference I could see.

Your writings are among the best I've seen, and consistently that way, whatever that may be worth. 

[JimIvey]

Your writings are among the best I've seen, and consistently that way, whatever that may be worth. 

Many thanks for the kind words.

Regards.

[ChrisWhewell]

No sweat.   I wouldn't have been able to re-iterate it it weren't true imo.  Your clients are fortunate.

Meantime, it was frustrating at the time having received a 112 for "one or more", it having been shown in the spec embodiments having one of the  whatzits, and pluralities of them as well.   Just an inconvenience which was overcome.   With Festo and others though, I really hate making any amendments at all and avoid the subjunctive in claims when it might be construed by some as objectionable.  I talked with a Si valley lawyer once about how a spec has to be written for many audiences: 1) the inventor; 2) judges; 3) lawyers not judges; 4) juries; 5) the boss of the associate drafting the spec; and 6) others.  We had a long enough discussion on it to burn out my cell phone battery.

[smgsmc]

P.S.  Remember that "OR" is such a clearly defined construct that even computers can evaluate it.

Ah, but computers can be given explicit "OR" and "XOR" instructions.  But, in descriptive language, there's no concise way to distinguish "non-exclusive or" from "exclusive or", so an ambiguity sometimes arises.  Many people then resort to the "A and/or B" phrasing for "non-exclusive or".  At the same time, in this instance, I rarely see  "or"  explicitly defined as exclusive.   Personally, I don't like "and/or". 

[JustAnotherExaminer]

I prefer "at least one" over "one or more" because you don't have that awkward plurality of the noun change, especially for further uses.

At least one car blah blah the at least one car is blue.

One or more cars blah blah the one or more cars is blue.

[JimIvey]

@Chris re Festo:  Yeah, that's a pain.  I usually remark that such an amendment does not narrow the claim in any way, and Festo is supposed to apply only to narrowing amendments.  I understand that it has been misapplied at times to non-narrowing amendments, but we do what we can.

@smgsmc:  Of course, that was tongue-in-cheek.  But I don't think the "or" in "one or more" has that particular ambiguity.  n >= 1. 

I read up on this whole "or" vs. "and/or" debate and, if I recall correctly, "or" in common usage is not exclusive (and means exactly the same as "and/or").  And, in open-ended claims (using "comprising"), I don't think it matters as adding extras doesn't avoid infringement.  Consider "A or B" in a claim.  As long as an accused device includes at least one A or at least one B, it meets that limitation regardless of how many other As and/or Bs you add.  That is, unless you have some language like "wherein the gadget does not include both A and B".

@JustAnotherExaminer:  I agree that there are stylistic advantages to the "at least" phrasing.

Regards.

[smgsmc]

@smgsmc:  Of course, that was tongue-in-cheek.  But I don't think the "or" in "one or more" has that particular ambiguity.  n >= 1. 

I read up on this whole "or" vs. "and/or" debate and, if I recall correctly, "or" in common usage is not exclusive (and means exactly the same as "and/or").  And, in open-ended claims (using "comprising"), I don't think it matters as adding extras doesn't avoid infringement.  Consider "A or B" in a claim.  As long as an accused device includes at least one A or at least one B, it meets that limitation regardless of how many other As and/or Bs you add.  That is, unless you have some language like "wherein the gadget does not include both A and B".

I used to write product requirements for a living.  Requirements, like claims, need to be written very meticulously.  I told rookies to be cautious with "or".  A simple example of poor requirements writing:

"The color of the cabinet shall be black or white."

Does the design engineer get to pick his preference of black or white?  Does the supply chain manager need to order only a batch of black paint, only a batch of white paint, or one batch of black paint and one batch of white paint?

On the other hand, I once pointed out that the requirement

"The colors of the cabinet shall be black and white."  allows the design engineer to design a router with a cabinet painted with zebra stripes.

Back to the patent world, even my boss (who typically strikes out any "or" in a claim) will allow "or" if it follows standard mathematic convention ("greater than or equal to" )