Federal Circuit holds “a plurality of” Should Apply to Each Element in a Series When “and” is Used Before the Last Element of the Series

The Court of Appeals for the Federal Circuit, in SIMO Holdings, Inc. v. Hong Kong uCloudlink Network Tech. Ltd., No. 2019-2411, (Fed. Cir. Jan. 5, 2021), reversed the S.D.N.Y’s construction of “a plurality of” followed by a list of items as not requiring a product to have all of the items in the list to infringe the claim where one of the listed items was described as being optional in the specification. The Appeals Court held that “a plurality of” requires one or more of each item claimed in a list when “and” is used before the last item in the list. The Court reversed the infringement determination and granted summary judgment of noninfringement. The Court did not remand the case back to the district court because SIMO did not create a triable issue of fact regarding whether the product accused of infringement contained one of the required elements of the claim.

The Court’s opinion may be found at http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2411.OPINION.1-5-2021_1711937.pdf.