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[JimIvey]

I don't think one can flat out state that "may" connotes uncertainty, whereas "can" is definite.

I think I did that.

Did you look at the dictionary definition I quoted?  For conveying ability, "may" appears to be depreciated in favor of "can", while a much more common definition for "may" is to describe a possibility that is a certainty.

I'm really not the bragging type, but I've had nothing but glowing reviews from litigators enforcing my work and even a client referral from an opposing (big firm) litigator trying to undermine it. I'm pretty confident pressing forward with very limited and specific use of the word, "may," and without qualifying every element of every illustrative embodiment with waffle words. 

Regards.

[smgsmc]

 E.g.,  "element X of the present disclosure may include A, B, C, and combinations thereof," suggests that element X could have elements A, B, and C, but is not required to.  I imagine you would write that same sentence as, "in some embodiments, element X of the present disclosure includes at least one of A, B, and C."  In my view, either sentence has the same meaning, but uses a different qualifier ("may" in the first sentence, vs. "in some embodiments" in the second sentence).

This is exactly how I interpret the use of "may" in this context. 

I don't.  I interpret it as follows:  "in some embodiments, element X of the present disclosure includes at least one zero of A, B, and C."  In other words, if "element X of the present disclosure may include A, B, C, and combinations thereof," element X also may not include A, B, C, or combinations thereof.  In other words, the manner in which I read "may" implicitly includes "or may not".

Regards.

If we follow this argument, then merely substituting "can" for "may" doesn't trigger a state transition from uncertainty to definiteness.  "Element X can include A, B, C."  carries with it the implicit "Element X does not have to (or does not necessarily) include A, B, C."  In which case, "In some embodiments, element X includes A, B, C." appears to be the best choice.

[ChrisWhewell]

If I recite a molecule having three R groups and state that "R3 may comprise any C1 to C8 hydrocarbyl group", no sane person would interpret that as meaning that R3 may not be C1-C8 hydrocarbyl.    Especially if the spec and examples teach nothing other than C1-C8.

When we see statutes that provide that the sec'y of the treasury may issue bonds, to my knowledge nobody in history has ever objected that the statute is vague or indefinite, because it also says that the sec'y may not issue bonds.   The meaning is quite clear.

[dablueman]

Did you look at the dictionary definition I quoted?  For conveying ability, "may" appears to be depreciated in favor of "can", while a much more common definition for "may" is to describe a possibility that is a certainty.

I've had this discussion/argument with a few applicants so I've actually created a form paragraph for it. For me it typically comes up with functional language rather than sets of possible elements. I'd give my full explanation I normally give agents but that would likely give me away, so I'll just say that as far as I'm concerned 'may' = "may or may not". Maybe an example would help:

1) I can sing well.
For this to be a true statement I must have the ability to sing well. It doesn't mean that I will sing well, only that I have the ability.
2) I may sing well.
This statement is true whether I sing well or not. It simply denotes a possibility from 0% to 100% that I sing well, and doesn't mean I have the ability to sing well.

may = may or may not = illusory possibility = wishy-washy
can = has ability = finite state.

If I recite a molecule having three R groups and state that "R3 may comprise any C1 to C8 hydrocarbyl group", no sane person would interpret that as meaning that R3 may not be C1-C8 hydrocarbyl.

Call me Ismail.

[klaviernista]

I don't.  I interpret it as follows:  "in some embodiments, element X of the present disclosure includes at least one zero of A, B, and C."  In other words, if "element X of the present disclosure may include A, B, C, and combinations thereof," element X also may not include A, B, C, or combinations thereof.  In other words, the manner in which I read "may" implicitly includes "or may not".

Your interpretation is fair.  But I would say that the same interpretation is implied by the use of "in some embodiments, element X includes at least one of A, B, and C . . . ."  By qualifying the statement with the phrase "in some embodiments," the drafter indicates that "some" embodiments include at least one of A, B, and C, and implies that "some" embodiments do not include those same elements.

Ultimately I think this particular aspect of drafting comes down to style, though as we have discussed in detail there are numerous landmines to avoid. 

[ChrisWhewell]

If may = may or may not, then by substitution:

may = (may or may not) or may not

may = (may or may not) or (may or may not) not

and

(may or may not) = (may or may not) or (may or may not) not

dividing each side by (may or may not):

1 = 1 or not 1

But unity cannot be equal to not unity, and what comes after the "or" in the last expression must be rejected, leaving us with

may or may not = may or may not

Which is different than may = may or may not.
______

OK, I'm being facetious and the foregoing may be wrong.   As I wrote previously, its desirable to avoid any language that's indefinite - even using "is" does not negate the possibility of indefiniteness and as always, matters are case/context-specific.  Imagine the confusion if deeds to real property used "may" language when defining boundaries....

[DogDayPM 9er9er9er]

...even using "is" does not negate the possibility of indefiniteness ...

Hey, going politico on us?

 

[ChrisWhewell]

...even using "is" does not negate the possibility of indefiniteness ...

Hey, going politico on us?

 

Dang.  Now I need a new user id. 

[DogDayPM 9er9er9er]

Hey, going politico on us?

 

Dang.  Now I need a new user id. 
[/quote]

Chris, you went right over my head with that one. 

[JimIvey]

... I'll just say that as far as I'm concerned 'may' = "may or may not". Maybe an example would help:

1) I can sing well.
For this to be a true statement I must have the ability to sing well. It doesn't mean that I will sing well, only that I have the ability.
2) I may sing well.
This statement is true whether I sing well or not. It simply denotes a possibility from 0% to 100% that I sing well, and doesn't mean I have the ability to sing well.

may = may or may not = illusory possibility = wishy-washy
can = has ability = finite state.

Precisely my point.  I don't believe I've ever heard "can or can not" used as a proxy for "can." 

Perhaps it's mostly a matter of style, but I believe there is enough in ordinary dictionaries to support dablueman's interpretation.  If "can" serves your purposes, I think it's a total no-brainer to use that instead of "may."

If may = may or may not, then by substitution:

.... :

1 = 1 or not 1

Well, that's sort of right.  "May" means "might" = has a probability of A where 0 < A < 1.

So, really, "may" implicitly includes "may not" which also has a probability greater than zero and less than one.  So, perhaps a more mathematically correct way to say "may or may not" would be "may and may not". 

Thus, to say that my car may be blue and that my car may and may not be blue are the same thing.  I'm saying that my car has some probability A (where 0 < A < 1) of being blue and a complementary probability of 1-A of not being blue.  I think that's mathematically sound.

I'll admit that "may and/or may not" is so lacking in providing useful information that some might wonder why that interpretation makes any sense at all -- why even have the phrase in our language?  I have 2 answers to that, and I think only one of them makes sense in patents.

The first is to negate a prior assertion.  Suppose someone tells you that Jim's car is blue.  If someone else says that Jim's car may be blue, that suggests that it also may not be blue, thereby negating the prior assertion without asserting its opposite.

The second is to describe a contingency.  Jim will bring his car in for body work and Jim's car may be blue.  If so, here's what we're going to do.  In many human-machine interface (HMI) technologies, the stochastic process of user interaction is often described using "may" and the responsive actions of the machine are typically deterministic and generally not described using "may" (in my work, anyway).

As for the chemical group hypothetical(s), I don't know enough about that to comment.  To the extent "may not" is an insane interpretation due to some inherency of the elements mentioned in the phrase, it's not a fair example.  For example, to say that human beings may not have human DNA is unreasonable, but not because of the meaning of "may".

Regards.

[ChrisWhewell]

This old horse is heading for the glue factory anyhow, so I'll boot it again

"May" can in some instances be part of a command, such as:  "The witness may now step down."   No reasonable witness would ask the judge "Your Honor, your statement also included the possibility that I may not step down, and I'm kind of comfortable here.  Thank you for the option !"   

[ChrisWhewell]

Hey, going politico on us?

 

Dang.  Now I need a new user id. 

Chris, you went right over my head with that one. 
[/quote]

I was wanting to keep my going politico under wraps !!

[JimIvey]

"May" can in some instances be part of a command, such as:  "The witness may now step down."   

See (b) and (e) in the dictionary definitions for "may" that I quoted above.

Yes, "may" has many meanings.  I believe patent applications and related documents require precision in language, so I tend to avoid words with so many meanings.

Regards.

[smgsmc]

I've had this discussion/argument with a few applicants so I've actually created a form paragraph for it. For me it typically comes up with functional language rather than sets of possible elements. I'd give my full explanation I normally give agents but that would likely give me away, so I'll just say that as far as I'm concerned 'may' = "may or may not".

I had planned to stop with this thread (lots of interest, surprisingly), but I feel it's important to respond to this one.

(a) Perhaps it's not agents you should be lecturing.  After about a year as an agent I stopped using the "may" phrasing in favor of "In an embodiment ..." and "Examples include ...".  The only time I use the "may" phrasing is when I'm writing applications for a particular megacorp client.  The in-house managing atty that I work with there (25+ yrs experience) insists on it.  Since he's footing the bill, I oblige.

(b) If you go back to the beginning of the thread, we are specifically discussing "may/can" in the context of sets of possible elements, rather than functional language.  Important distinction here:

Functional language:

"Matter can be converted into energy." ~ "Matter is able to be converted into energy."  Check.  No debate on my part.

Set of possible elements:

“A network switch can be a router, an Ethernet switch, or an ATM switch.” ~?  “A network switch is able to be a router, an Ethernet switch, or an ATM switch.”  Is that the intent here?  Not to me.

(c) For those who are advocates of  “’Can’ is definitely definite.”, I haven’t received a response to issues which I raised with respect to ‘can’.  “A network switch can be a router [but that doesn’t necessarily mean that it is a router]”.  “A liquid can evaporate into a gas [but that doesn’t necessarily mean that it actually does evaporate] .”   So, depending on the context, there (may, can) be conditional baggage associated with 'can' that leads to a degree of indefiniteness.

[JimIvey]

Okay, I'll take a shot at these.....

“A network switch can be a router, an Ethernet switch, or an ATM switch.” ~?  “A network switch is able to be a router, an Ethernet switch, or an ATM switch.”  Is that the intent here?  Not to me.

“A network switch can be a router, an Ethernet switch, or an ATM switch.” ~  “A router, an Ethernet switch, and an ATM switch are each capable of serving as a network switch within this description.”  I don't believe "may" means the same thing in that context.

But that's not where I have the biggest problem with "may" relative to "can". 

"Network switch 100 may direct messages between network nodes operatively coupled thereto."  Does it?  I don't know.  Can it?  I don't know.  Is that capability part of network switch 100?  Unknown.  The sentence tells me nothing.

Is it possible that the switch on the UPS that powers my router is a "network switch"?  It's a "switch" and it has some relation to the operation of a "network."  Maybe other sentences in the spec will preclude that as a viable embodiment, but this sentence does not preclude such.

Cf. "Network switch 100 may can direct messages between network nodes operatively coupled thereto."  Ah, now I know something about network switch 100!  It has the ability to direct (transport, deliver, etc.?) messages between network nodes that are connected to one another through network switch 100. 

Now I know that the switch on the UPS that powers my router cannot serve as "network switch 100" as it has no such capability.

(c) For those who are advocates of  “’Can’ is definitely definite.”, I haven’t received a response to issues which I raised with respect to ‘can’.  “A network switch can be a router [but that doesn’t necessarily mean that it is a router]”.  “A liquid can evaporate into a gas [but that doesn’t necessarily mean that it actually does evaporate] .”   So, depending on the context, there (may, can) be conditional baggage associated with 'can' that leads to a degree of indefiniteness.

If you mean to say that neither "may" nor "can" is equivalent to "is", you're right.  However, "may" and "can" are not synonyms. 

Pure and simply, "can" means "is capable of" and is therefore part of a position assertion.  "May" means something else and is much less clearly part of a positive assertion.

Compare "This liquid may evaporate into a gas."  Like your example, it does not mean that the liquid actually will evaporate into a gas.  Unlike your example, it also does not mean that this particular liquid is capable of evaporating into a gas.  If the response is that all liquids can evaporate into a gas, then that is conveyed by extrinsic knowledge of liquids and not conveyed by "may". 

Regards.