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« Interval Licensing LLC v. AOL, Inc. (Fed. Cir. 2018) | Main | Ex parte Galloway (PTAB 2018) »

July 25, 2018

Comments

SuperGuide is a dumb decision, one of those decisions that defies common sense and creates the kind of trap for the unwary that only a lawyer could love (kind of like the distinction that has been drawn in the case law between a prospective assignment of future inventions and an obligation to assign future inventions).

Fortunately, the footnotes in the PTAB's decision include a long list of cases in which the adjudicator distinguished over SuperGuide, and the bar for that is pretty low. One CA court said the inclusion of a colon after "at least one of" was sufficient to establish that the clause was disjunctive. You could also establish the disjunctive meaning via the doctrine of claim differentiation.

I wonder how the Board would interpret the following phrases.

Phrase 1: at least one of both A and also B.

Phrase 2: at least one both of A and also of B.

I think the former phrase provides the disjunctive meaning while the latter phrase provides the conjunctive meaning.

Is "at least" even needed?

If the claim used "exactly one" instead of "at least one," would the Board's analysis change?

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