I am concerned that using the phrase comprising:
An entertainment system for children to marvel upon, glass spheres are contained in a glass jar, the system comprising:
- red marbles;
- white marbles; and
- blue marbles.
Assume that the I have invented and claimed a blue marble in the application and that red & white are prior art.
The concern here is that comprising indicates that the system must have at least one of each of the three colors. In this case, a competitor with a system of 1 or 2 marbles would not infringe (these systems do not have the requisite 3 colored marbles) and the claim is defeated. Is there a less restrictive version of the term comprising in the sense that the line items may, but NOT necessarily be included?
As I understand from this example, the examiner will interpret from the keyword comprising that only combinations that include all 3 line-items are claimed.
By use of the connecting or transition word "comprising" ("open" language), the claim says, "the device has at least these things, but might have other things also." Other connecting words have other meanings - for example, if what was claimed was a motor vehicle "consisting of" the list ("closed" transition language), then the motor vehicle would have that list and nothing else. A car having the listed elements and seats would not infringe.
Is there a replacement for comprising? So as to communicate the system has at least one marble and that in 3+ marble systems, combinations of 1, 2, or 3 marbles are within scope of the claim and that possibly 4 if another marble is introduced (the goal is to deter competitors from working around the claim with systems not including all 3 marbles or introducing a fourth marble color and defeating the claim).