Ex Parte Jung De-Designated as Informative by PTAB

A previous post discussed Ex parte Jung, which was designated as Informative by the PTAB on July 10, 2018.  In a bulletin posted on August 7, 2018, the PTAB states that:

It has come to PTAB’s attention that the decision has not been read as intended. For example, the designation was not intended to reflect new or changed policies with respect to claim construction. As a result, in order to avoid any confusion, the decision has been de-designated and removed from the list of informative decisions. The case remains a routine decision of the Board…

This case nonetheless raised an interesting discussion of SuperGuide Corp. v. DirecTv Enters., Inc., 358 F.3d 870 (Fed. Cir. 2004), which interpreted language in the form of “at least one of A and B” to mean at least one of A and at least one of B, as well as the line of subsequent cases discussed in the Jungdecision that distinguish SuperGuide

Anecdotally, it appears that a common practice has been to avoid claiming in the form of “at least one of A or B” because “or” sometimes invites an indefiniteness rejection, and instead to claim in the form of “at least one of A and B” with the intention that it means the same thing.  In an effort to avoid unintentionally triggering the interpretation in SuperGuide, one may consider drafting in the form of “at least one of A or B” with a plan to traverse a potential indefiniteness rejection based on “or.”

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