Nathalie Stewart (asker) Mar 31, 2019:

Thank you everyone! Thank you everyone. </br>I will go with Clem Deviers's solution which I find is the most reasonable, precise and clear one. Thank you also very much, Orgogozo and Eliza, for your insight. I agree that patent language is hyper-precise and follows a logic as strict as math, sometimes to the point of distorting ordinary grammar, and I am aware of the huge legal consequences of any translation or formulation error. That is exactly why I had raised this question in the first place, and you addressed it reliably and professionally, like I needed. I was not asking about "les au moins un" which is a separate issue and is beside the point here. As for "comportant" vs. "comprenant" -- also a separate issue -- indeed both are widely used, with some slight nuances as described by Clem Deviers. Multiple examples can be found by checking Google patents with (for example) the keywords "patents+système+comportant". In my particular case, I will be using "comportant" or "comprenant" at different locations in the text, depending on each instance.
</br> Anyway, very interesting discussion, covering many different aspects of patents and extending far beyond my original question.

Eliza Hall Mar 31, 2019:

@ Christian You asked, "do you see a difference between a patent claim covering 'Y, Y or Z' and one covering 'at least one of X, Y and Z'?" (I assume you meant "X, Y or Z," not "Y, Y...")

Yes. One is clear; one's not.

Unless the drawings, prosecution history, common sense etc. suggest otherwise, I would tend to read them as meaning that the first one only covers an invention that has either X, or Y, or Z element (but not a combination of those elements), while the second claim would cover both that invention (i.e. just one of those elements) and also an invention that combines two or all three of those elements. If the patentee on that first claim (X, Y or Z) was claiming something broader, they could've said so. Why didn't they?

That being said, if I were counsel for the patentee on that first one, I would argue that any invention that included one of those elements was covered, whether or not it also included either of the other two elements. Assuming this interpretation isn't contradicted by the drawings, prosecution history, common sense etc., you could argue that the claim covers any invention featuring X, Y or Z regardless of what else it may feature. So this one is unclear.

Renate Radziwill-Rall Mar 30, 2019:

Christian que veut dire "at least one of ..." ?

Christian Fournier Mar 30, 2019:

@Renate I was referring to option 2 "at least one of...". I just need you to confirm that it can't be X alone or Y alone or Z alone in that case...

Renate Radziwill-Rall Mar 30, 2019:

Christian what did I say? "X, Y or Z means either one of them." so: X or Y or Z. In the second case it is "at least one..."

Christian Fournier Mar 30, 2019:

@ Renate (not Eliza) so, it can't be X alone or Y alone or Z alone ?...

Renate Radziwill-Rall Mar 30, 2019:

my name is not Eliza, but X, Y or Z means either one of them. "at least one of X, Y and Z" precisely what it says: at least one = X + Y or X + Z, or Y + Z or X, Y, Z.

Christian Fournier Mar 30, 2019:

@ Eliza This discussion is really interesting. If you care to pursue it (I don't want you to waste your time), I have another question: do you see a difference between a patent claim covering "Y, Y or Z" and one covering "at least one of X, Y and Z"?

Eliza Hall Mar 30, 2019:

Patents - that's what we're talking about @ Tony M: I personally don't mind saying "Monet, Renoir or Degas" in English, in your example (where all 3 artists are in the same exhibition). You don't like it; you'd change "or" to "and." Either one works; it's just a stylistic preference. Our choice has zero impact on our client's bottom line.

But in PATENTS, there is no style. There is only substance, only concrete meaning. Patent claim language is as precise as math; every word is there, or not there, for a reason. You can't switch out "and" for "or"; you must stay as close to the original as possible. If you change or obscure the meaning, you could cost your client tens of thousands of dollars. Don't do it.

@ Christian Fournier: a patent claim covering "X, Y or Z" covers exactly what it says: X, Y or Z. If any 1 of those 3 elements is present, it's covered. That's completely different than a patent claim covering "X, Y and Z" (all 3 elements must be present) or one covering "X and Y or Z" (element X must be coupled with either element Y or Z).

Also @ Christian Fournier: you said you translated "et" with "or" yesterday. If that translation was a patent, I strongly recommend that you replace that "or" with "and.

Christian Fournier Mar 30, 2019:

@ Eliza And what about a patent claim covering "X, Y or Z"? What is actually covered?

Eliza Hall Mar 30, 2019:

@ Tony M - DO NOT swap out "and" for "ou" As an IP lawyer with years of experience in patent litigation, I can tell you that if you change "and" to "ou" in the translation, you have made a major, material change to the meaning.

You could perhaps make such a change in a contract or litigation discovery request, because contracts and discovery requests have definition sections that often specifically say that the conjunctive (and) can mean the disjunctive (or) and vice-versa.

But patents do not say that, and the difference between a patent claim covering "X, Y and Z" and one covering "X and either Y or Z" is HUGE. A product could infringe a patent claiming "X and either Y or Z" but not at all infringe a patent claiming "X, Y and Z." Those are two different inventions.

Renate is right: IN A PATENT, NEVER CHANGE "AND" TO "OU" or vice versa. Not unless you want to either get your client sued, or cause your client to spend tons of money mistakenly suing someone else. The suit wouldn't get far, because once the original patent was read the lawyers would realize there was no basis for the suit -- but it could easily cost tens of thousands of dollars in legal fees before they reached that point.

Renate Radziwill-Rall Mar 30, 2019:

Christian je suis spécialisé en matière de brevets. Je travaille à longueur de journée / semaine / mois là-dedans :)

Christian Fournier Mar 30, 2019:

@ Renate Salu Renate !
D'où tiens-tu cette information ? C'est la première fois que j'en entends parler.

Renate Radziwill-Rall Mar 30, 2019:

my 2 cents ... -

Renate Radziwill-Rall Mar 30, 2019:

normalement oui mais pas dans les brevets

Tony M Mar 30, 2019:

@ Asker Without having any input to offer on your specific query here, I just wanted to also confirm what Christian says, that in this sort of list formulation, 'and' often becomes 'ou' in FR, and equally often vice-versa. You do need to follow the underlying logic, rather than being too slavishly literal about it, as long as the meaning is correctly rendered unambiguously.

Christian Fournier Mar 30, 2019:

C'est drôle, j'ai été confronté au même problème hier.
J'utilise la même formule que vous (l'un des éléments suivants), et je remplace "et" par "ou".
D'ailleurs, j'ai constaté que c'est bien souvent qu'un "and" doit devenir un "ou" en français pour rendre le sens.

Renate Radziwill-Rall Mar 30, 2019:

not ok patents need litteral translation. "and" stays "et"