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ARTICLE · 02 AUGUST 2021

Coffee "Or" Tea? Is That Coffee Or Tea, But Not Both? Or Possibly Both?

Finnegan, Henderson, Farabow, Garrett & Dunner LLP
Finnegan, Henderson, Farabow, Garrett & Dunner LLP
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A patent drafter's word choice, even as trivial as words like "or," may have a significant impact on how a claim is construed.

United StatesIntellectual Property

A patent drafter's word choice, even as trivial as words like "or," may have a significant impact on how a claim is construed. Is "or" inclusive or exclusive? Does "A or B" mean a choice between "A and B, but not both"? Or does it mean one can choose from "A, B, and both A and B"?

In daily life, people use "inclusive or" and "exclusive or" interchangeably, yet it rarely confuses us because we are trained to read them in context. For example, when a flight attendant asks "coffee or tea?" it usually means choosing between coffee and tea, but not both, since there is only one small cup in front of us. Then when the flight attendant asks "cream or sugar?" it means a choice between cream, sugar, and possibly both.

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