Marcus P. Dolce
Many of One or Many of Many?
The United States Court of Appeals for the Federal Circuit recently interpreted claim language of “a plurality of A, B and C” in SIMO Holdings, Inc. v. H.K. uCloudlink Network Tech,. Ltd., 2021 U.S.P.Q.2d 25 (Fed Cir. 2021). In SIMO Holdings, Inc., the Court held that “a plurality of memory, processors, programs, communication circuitry, authentication data stored on a subscribed identify module (SIM) card and/or in memory and non-local calls database” in a claim requires “a plurality of” each component in the list.
Therefore, use of “a plurality of” preceding a list of elements could result in an interpretation that the claim requires a plurality of each of the elements. If you wish your claims to be interpreted in this manner, you can continue to use such language. However, if you wish a different interpretation, you should reframe the claim language to encompass your intent.
As an optional approach, the Court in SIMO Holdings, Inc. indicated that the use of an indefinite article (i.e., “a” or “an”) before each element might have resulted in a different interpretation. Therefore, you should be more explicit that your list requires more than one item on the list, but not a plurality of each item on the list. For example, you can claim “a plurality of an ‘A’, a ‘B’ and a ‘C’”, “a plurality of the following: an ‘A’, a ‘B’ and a ‘C’” or “at least two of the following: an ‘A’, a ‘B’ and a ‘C’.”
As a final note, do not employ the terms in the list in a manner that is contrary to your intended interpretation. For example, in SIMO Holdings, Inc., the claim later included “at least one of the plurality of programs stored in the memory.” The Court employed this language to state that such language requires “a plurality of programs,” such that the previously stated “a plurality of memory, processors, programs, communication circuitry, authentication data stored on a subscribed identify module (SIM) card and/or in memory and non-local calls database” could only be interpreted as requiring a plurality of programs, which means that the “plurality of” language applies to each element in the list.