Claim 1 of the application recited "a plurality of different websites characterized by a common parameter including at least one of a common content topic and/or a common contractual arrangement."
The examiner rejected claim 1 as indefinite based on the "and/or" term.
Use of the "and/or" construction is far from new, and has historically been met with some resistance in the legal field.
"It is manifest that we are confronted with the task of first construing 'and/or,' that be fuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of some one too lazy or too dull to express his precise meaning, or too dull to know what he did mean," wrote Justice Fowler in comparing the construct to the two-faced Roman god and eponym of the month of January. Employers Mut. Liability Ins. Co. v. Tollefsen, 219 Wis. 434 (1935).
Nonetheless, and to what would likely be to Justice Fowler's dismay, on appeal the board reversed the examiner. The board found that the "A and/or B" language meant the same as A alone, B alone, or A and B together. The board did note, however, that the preferred way of writing the claim is through use of "at least one of A and B" in the future.