In the seminal classic "The Princess Bride," the criminal Vizzini repeatedly misuses the word "inconceivable," to which Inigo Montoya memorably quips, "You keep using that word. I do not think it means what you think it means."
On June 17, the U.S. Court of Appeals for the Federal Circuit handed down a Montoya-esque opinion in Express Mobile Inc. v. Meta Platforms Inc.,[1] in which the Federal Circuit vacated the Patent Trial and Appeal Board's claim construction over the board's incorrect understanding of the phrase "one or more." This case serves as a valuable reminder that litigants should be precise and clear with their language, especially in claim construction.
Background
A number of technology companies[2] filed three petitions for inter partes review against Express Mobile's U.S. Patent No. 7,594,168.[3]
The '168 patent discloses a browser-based system that "includes a user interface that allows a web designer to build web pages by placing 'objects' on the page and associating them with a 'style.'"[4]
During the IPRs, the parties disputed the meaning of the term "style." According to Express Mobile, "style" should be construed to mean "a collection of one or more settings that is defined separately from any single object but can be associated with one or more objects."[5] Meta proposed that "style" should be construed as an "attribute that defines the visual appearance of an object."[6]
The board determined that it did not need to adopt a construction to resolve the parties' claim construction dispute. Instead, the board found that even if it adopted Express Mobile's narrower construction, the prior art combinations still invalidated the claims.[7]
Thus, for purposes of rendering a decision, the board applied Express Mobile's proposed construction. Or, at least it thought it did. In a classic construing-the-construction situation, the board and Express Mobile disagreed on what Express Mobile's proposed construction meant by "can be associated with one or more objects."
According to Express Mobile, a style must be capable of both (1) being associated with a single object, and (2) being associated with more than one object. In other words, if a prospective style was only capable of being associated with a single object, then it failed to meet the claim term.
The board, on the other hand, viewed the use of "or" as referring to alternatives. In other words, any prospective style that could be associated with a single object meets the claim term, regardless of whether the prospective style could also be associated with a plurality of objects.
The Federal Circuit's Opinion
The Federal Circuit agreed with Express Mobile. The claimed style must be capable of being associated with both a single object and with a plurality of objects.
Beginning with the claim language, the Federal Circuit found that the first time the term "style" is used in Claim 1 of the '168 patent, the style is associated with objects, plural.[8]
According to the court, "[t]he plain meaning of this language implies that a style is able to be associated with a plurality of objects."[9] Other limitations further reinforced this conclusion.[10]
The court also found support in the specification of the '168 patent, stating that "[n]owhere in [the relevant] description of the invention's use of styles does it imply that a style is a formatting tool that can only be used for one object at a time."[11]
The court explained that there is no "per se rule that the use of the word 'or' must always be treated as an alternative in the context of claim construction."[12] In the context of the '168 patent, "or" did not mean what the board thought it meant.
After establishing what the correct construction was, the Federal Circuit did not proceed to apply that construction. Instead, it vacated the board's decision and remanded the case for further proceedings in light of the correct claim construction.[13]
Takeaways
The Express Mobile case provides several lessons for patent prosecutors and litigators alike.
First, practitioners should be fully aware of the implications of using the phrase "one or more." This phrase is ubiquitous in patent law. Patent prosecutors often use "one or more" in claim language or descriptions in a specification.
Similarly, during claim construction, litigators often advocate for specific claim constructions that include the phrase "one or more," like Express Mobile did here. But Express Mobile reminds us that even this common phrase must be understood in context.
Regardless of whether one is drafting a specification, claims or proposing claim constructions, practitioners should consider the context of their usage of "one or more."
Is the language meant to capture alternatives? Or, is it intended to list multiple requirements? Both the surrounding claim language and the specification may be used to give meaning to the phrase "one or more," and practitioners should help patent applicants draft their claims and specifications accordingly.
Second, litigants proposing constructions should consider how to make their proposed constructions as clear as possible. In the Express Mobile case, the Federal Circuit noted that "Express Mobile's proposed claim construction to the Board could have more clearly elucidated" the concept that a style must be capable of being associated with more than one object.14
While no practitioner can predict with 100% certainty how another is going to interpret a proposed construction, the Federal Circuit's reminder is nonetheless a good one.
Practitioners would do well to consider how others may interpret, or misinterpret, a proposed construction.
Seeking input from colleagues on how they would understand a certain word or phrase may be useful. If that option is not available, then at least playing devil's advocate with one's self to try to anticipate how a court or opposing party might interpret a proposed construction is an ideal place to start. Otherwise, you might end up with a court telling you that a word does not mean what you think it means.
[1] Express Mobile, Inc. v. Meta Platforms, Inc., et al. , No. 23-1646 (Fed. Cir. 2025).
[2] Meta Platforms Inc., FKA Facebook Inc., SAP America Inc., eBay Inc., Expedia Inc., Homeaway.com Inc., Squarespace Inc., Wix.com Ltd, Wix.com Inc., and Google LLC.
[3] IPR2021-01226, IPR2022-00572, IPR2022-0597.
[4] Express Mobile, Slip Op. at 3.
[5] Id. at 5.
[6] Id.
[7] Id. at 5-6.
[8] Id. at 10.
[9] Id.
[10] Id. at 11.
[11] Id. at 13.
[12] Id. at 11 (citing Intel Corp. v. Qualcomm Inc. , No. 22-1046, 2023 WL 4196901, at *4 (Fed. Cir. June 27, 2023).
[13] Id. at 13.
[14] Id. at 11.
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