Update: Perhaps recognizing that the decision uses overly broad language, the PTAB de-designated the Ex parte Jung decision on August 7, 2018. Ex parte Jung has thus been removed from the PTAB’s list of informative decisions. Nonetheless, practitioners would be wise to continue to follow the practice pointers discussed below to help ensure that claim terminology aligns with the intended meaning. 

On July 10, 2018, the U.S. Patent and Trademark Appeal Board (PTAB) designated a prior decision, Ex parte Jung, focused on the proper claim construction of “at least one of” as informative. Patent practitioners should thus be familiar with this decision, including the possible implications for claim construction by Examiners at the U.S. Patent and Trademark Office (USPTO).

The now-informative decision in Ex parte Jung says that the plain meaning of “at least one of A and B” is the conjunctive unless the record indicates otherwise (i.e., the plain meaning of this claim recitation is “at least one of A and at least one of B.”) Ex parte Jung, 2016-008290 (PTAB Mar. 22, 2017). As discussed further below, the Ex parte Jung decision relies on (in overly broad terms) the Federal Circuit holding in SuperGuide as the basis for this decision. SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870 (Fed. Cir. 2004). Future claim drafters must be aware of the Ex parte Jung decision regarding “at least one of A and B” to ensure that a claim is interpreted as intended.

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