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[LaplacesDemon]

My invention makes use of 5 of something. Let's say the 5 relates to the fingers of the human hand. So there is a very firm reason why it needs to be 5. But if I say "it has 5 widgets" am I risking somebody coming along and saying his has 4 or 6 to accomodate those rare individuals who don't have the usual number of fingers on their hand? The only motivation would be to get around my patent but is this really a risk?

Thanks!

[klaviernista]

If a claim recites "a product comprising 5 of X" it would be a very rare case for a product that has 4 of X to infringe.  A product that has 6 of X is another matter, because the transitional phrase "comprising" is so called "open language," meaning that while it requires a product with 5 of X, a product having 6 of X would still infringe.  Of course, that is looking at the claim language in a vacuum.  Depending on the specification and the arguments of record, the applicant might be estopped from asserting that "comprising 5 of X" encompasses products that contain more than 5 of X.

Use of the "at least" modifier would address the latter issue, but not the former.  That is, the modifier would adjust the claim language to even more clearly encompass products that include more than 5 of X, but would (logically) not alter the claim language such that it encompasses products comprising 4 (or less) of X.

If you want to encompass slightly more or slightly less than a particular amount, use of the modifier "about" is typically sufficient.  I.e., a claim reciting, "a product comprising about 5 of X" will encompass 5 of X, and slightly more or less than 5 of X.  You could further modify with the phase "at least about" to encompass products having more than 5 of X (even significantly more), while retaining coverage of products having slightly less than 5 of X, e.g., "a product comprising at least about 5 of X."

Claim construction is one of the most important parts of any patent litigation.  So it is important that the language be as clear as possible.  Any ambiguity leaves the door open for a court to construe the claims in a matter completel unintended by the applicant.

[LaplacesDemon]

In this case pretty much the whole point is that there are 5 of them. Four won't work and six is pointless and inefficent. The correct number is five. Though that doesn't mean somebody wouldn't use six just to claim they aren't infringing. But there are "a plurality of other aspects" that I can use to nail it down. That being the case should I just say there's five? Or is that asking for trouble? Perhaps I should just leave out the number and address the functionality instead. That being the more important issue.

Looks like "a plurality" might be the way to go. 

[klaviernista]

In this case pretty much the whole point is that there are 5 of them. Four won't work and six is pointless and inefficent. The correct number is five. Though that doesn't mean somebody wouldn't use six just to claim they aren't infringing. But there are "a plurality of other aspects" that I can use to nail it down. That being the case should I just say there's five? Or is that asking for trouble? Perhaps I should just leave out the number and address the functionality instead. That being the more important issue.

Looks like "a plurality" might be the way to go. 

You should include claims of broad, medium, and narrow scope.  A claim limited to 5 elements would be considered narrow, IMO.  A "plurality" would be significantly broader.

Not that narrow claims do not have value.  To the contrary, they are often the most easily enforced, and can be of incredible value if they encompass the entire working range of the invention.  There are lots of pharma patents out there that claim 1 molecule.  Although easy to design around, that molecule might be the only form of the compound that is active for a particular purpose, or which does not exhibit horrible side effects when administered in humans.

[blakesq]

Write a claim to "at least one widget", and have a dependent claim to "a plurality of widgets" and still another dependent claim to "5 widgets".  That way you cover the whole spectrum. 

My invention makes use of 5 of something. Let's say the 5 relates to the fingers of the human hand. So there is a very firm reason why it needs to be 5. But if I say "it has 5 widgets" am I risking somebody coming along and saying his has 4 or 6 to accomodate those rare individuals who don't have the usual number of fingers on their hand? The only motivation would be to get around my patent but is this really a risk?

Thanks!

[MYK]

Write a claim to "at least one widget", and have a dependent claim to "a plurality of widgets" and still another dependent claim to "5 widgets".  That way you cover the whole spectrum.

This.

Also, if there is a specific reason for the specific number of widgets, you could put that in as another dependent:

9. The gizmo of claim 1 where the number of widgets in the plurality of widgets is equal to the number of fingers on a hand coupled to the gizmo.

"The number" may sound like it needs an antecedent basis, but I would argue that it is an inherent property like "the center of the first circle" or "the focus of the parabola".  If you feel strongly about it, you could use "a number", or perhaps put "a number" in a higher claim.  Might also want to use "count" instead of "number".  Might also want to use "at least" instead of "equal to".  Might instead want to use "at most" instead of "equal to".  Might want to put in a dependent claim using each formulation.

[khazzah]

But if I say "it has 5 widgets" am I risking somebody coming along and saying his has 4 or 6 to accomodate those rare individuals who don't have the usual number of fingers on their hand?

The other posters make some great points about why you may not want to specify 5. But I'll address your specific question because I think it's a good one.

If you recite "five widgets" and a particular infringing device is built with only 4 widgets, because widgets have some relationship to fingers and this device is built to accommodate users with only 4 fingers -- then that particular device does not infringe for the simple reason that it doesn't include every element in the claim.

But maybe that's ok. If 1% of humans have exactly 4 fingers, then you're only losing 1% of the market, right? Who cares if 1% of the devices escape infringement?

I think it's important to understand that a claim isn't fatally deficient if it doesn't catch every scenario.

[Wiscagent]

A claim for a gadget with 5 widgets would normally* read on a gadget with 6 widgets.

Consider a claim for a bicycle:   A cycle comprising X, Y, Z, and two wheels.

That claim would also cover a tricycle that comprises X, Y, and Z; but the claim does not cover the unicycle with X, Y, and Z.

*normally, not always, because the specification could teach away from more than 5 widgets.  And that might change the interpretation of the claim.

[LaplacesDemon]

Just to let you all know I solved the problem by using the term "multi-widget" and leaving the count open in the text. Meanwhile all the art shows 5 but since I never specify a number its open to interpretation. hehehe

Thanks again!