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[Davidgojr]

I have a question regarding the drafting of claims.  Can "And/or" be used in a claim if an invention can be used for two seperate but distinct functions?

Thanks!

[Wiscagent]

I just did a search on the USPTO data base for patents with claims containing "and/or"; I got 125159 hits.  So yes, you can use "and/or".  

You might want to run a narrower search to see claims where "and/or" is used in the manner you intend.  It might not be a bad idea to pull some file wrappers to see if "and/or" resulted in objections that had to be overcome.


Richard Tanzer

[Davidgojr]

Thanks for the reply.  I'll take a look at a few of the file wrappers.

[TataBox]

Will you lose claim differentiation if you include and/or in your dependent claim set? Not sure if this is what you meant.

[Wiscagent]

I don’t like the use of “and/or” there are usually better approaches.

For example, sometimes a Markush group is appropriate:

  … a monomer selected from the group consisting of styrene,
  acrylate, methacrylate, and mixtures thereof; …

A Markush group is inherently an “or” listing and the phrase “and mixtures thereof” takes care of the “and” portion.

In other situations you’re probably better off with two or three claims rather than one claim using “and/or”.   For example, here’s a claim using and/or:

1)  A light fixture comprising an electric power wire, at least
    one florescent and/or incandescent light bulb, and a support
    for the bulb at least partially enclosing the wire.

I’d replace claim 1 with these three claims:

2)  A light fixture comprising an electric power wire, at least
    one light bulb, and a support for the bulb at least partially
   enclosing the wire.

3)  The light fixture of claim 2 wherein the light bulb is florescent.

4)  The light fixture of claim 2 wherein the light bulb is incandescent.

Claim 2 is broader than claim 1, and claims 3 and 4 are unambiguous.


Richard Tanzer

[Bill Richards]

I like Richard's claim 2.  I'll add that I've successfully replaced the dependent claims with one Markush group dependent claim.  Depends upon the p/a, though since just one can toss the entire claim.  Anyone see any problem with that approach?