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A little more on patent infringements.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.The Festo case concerns the application and interplay of two long-standing
principles of patent law: the doctrine of equivalents and prosecution history estoppel
(also known as file wrapper estoppel). The doctrine of equivalents provides that a
product or process that does not literally infringe a patent can still be found to be
infringing if the differences between the allegedly infringing product or process and
the patented invention are minimal and insubstantial, that is, if the allegedly
infringing product or process is substantially equivalent to the patented invention.
There is equivalents infringement if the elements of an infringing product or process
perform substantially the same function in substantially the same way to obtain the
same result as the elements of the patent claims. This doctrine evolved in the federal
courts around the mid-nineteenth century and is generally acknowledged to have been
first expressed and applied in a U.S. Supreme Court case in Winans v. Denmead, 15
How. 330, 14 L. Ed. 717 (1853). The doctrine seeks to balance the right of a patent
holder to a just and fair scope of protection with the right of the public and potential
competitors to know the scope of the patent protection granted to the patent holder.
Potential competitors must know with fair certainty the limits of the patent grant in
order to be able to innovate and “design around” the patent to avoid infringement; the
patent policy seeks to encourage further genuine innovation in a given industry. At
the same time, patent holders merit protection from competitors who attempt to
design around a patent with minor changes to elements of an invention covered by
a patent.
The doctrine of equivalents is limited by prosecution history estoppel.
Prosecution history estoppel provides that if a patent applicant surrenders subject
matter during prosecution to avoid rejection, i.e., amends claims to narrow them for
reasons of subject matter patentability, the patentee cannot later claim that this
surrendered subject matter is equivalent to surviving claims in the patent. For
example, an applicant applies to patent a plastic-top table with metal legs. The
examiner rejects the claim for metal legs because prior art includes a plastic-top table
with rigid metal legs. The applicant then narrows the claim to distinguish it from
prior art by amending it to cover a plastic-top table with collapsible metal legs
folding into two parts and the patent is granted. The patentee cannot now claim that
a plastic-top table with rigid metal legs is equivalent and should be found infringing,
because the patentee surrendered rigid metal legs in the narrowing amendment. The
patent applicant could surrender subject matter by amending a claim voluntarily or
at the request of the patent examiner. Additionally, the applicant could surrender
subject matter by making an argument on the record to answer the concerns of the
examiner without actually amending the claims. Before Festo, the standard for
applying both amendment-based and argument-based prosecution history estoppel
was whether a person reasonably skilled in the art would reasonably believe that the
patentee had surrendered subject matter during prosecution. This balanced the public
notice function of the prosecution history with the fair, adequate and just scope of
patent protection.
I would like to thank everybody on this board for holding up buying before I bought.
fund with a 6% interest
Microsoft going to jury trial for patent infringement March 8 Keep VHC on your watch list.
Down 2.88% PATENT INFRENGEMENT
SCOTTS VALLEY, Calif., Aug. 10 /PRNewswire-FirstCall/ -- VirnetX Holding Corporation (NYSE Amex: VHC) announced today that its president and CEO, Kendall Larsen, will be conducting a conference call on Thursday, August 13, 2009 at 1:00PM EDT, to discuss its current Markman Order in its litigation with Microsoft and the Order's impact on VirnetX's business strategy.
To listen to the call live on your computer, click on the webcast link: http://www.b2i.us/external.asp?b=1944&id=777&from=wc&L=e
The trial in connection with the Microsoft litigation is scheduled to start on March 8, 2010.
Markman hearing is a pretrial hearing in a U.S. District Court during which a judge examines evidence from all parties on the appropriate meanings of relevant key words used in a patent claim, when patent infringement is alleged by a plaintiff. It is also known as a "Claim Construction Hearing".
Holding a Markman hearing in patent infringement cases has been common practice since the U.S. Supreme Court, in the case of Markman v. Westview Instruments, Inc., found that the language of a patent is a matter of law for a judge to decide, not a matter of fact for a jury to decide. In the United States, juries determine facts and judges determine matters of law.
Markman hearings are important, since the court determines patent infringement cases by the interpretation of claims. A Markman hearing may encourage settlement, since the judge's claim construction finding can indicate a likely outcome for the patent infringement case as a whole. Markman hearings are before a judge, and generally take place before trial. A Markman hearing may occur before the close of discovery, along with a motion for preliminary injunction, or at the end of discovery, in relation to a motion for summary judgment. A Markman hearing may also be held after the trial begins, but before jury selection.
The evidence considered in a Markman hearing falls into two categories: intrinsic and extrinsic. Intrinsic evidence consists of the patent documentation and any prosecution history of the patent. Extrinsic evidence is testimony, expert opinion, or other unwritten sources; extrinsic evidence may not contradict intrinsic evidence.
richboy1 You might want to check out VHC Up 15% patent infringement with microsoft. Orders I don't know about the orders going up or down but their is a comference call on the 13th.
UP 15% PATENT INFRINGEMENT WITH MICROSOFT CONFERENCE CALL talk about impact on ORDERS See news on 8/10/2009 To tired to put link in. MONEY to be made here. Must be nobody Watches Bloomberg tv.
Patent infringement with Microsoft. http://ih.advfn.com/p.php?pid=nmona+cb=124982846&article=38863475&symbolA%5EVHC
A good place to keep track of hotel news http://hotelnewsnow.com/Home.aspx
holycroc I got in DDR prefered a little over 35% intrest around april because the Germany co gave them momey for shares sence then every thing has been going up. maybe you want to check out GRT under $4.00 was amost $60.Should have some upside.
10Q is out.
fivestar this the working weblink for summary judgement done by which judge. see line: us code 636 (b) (1) (a)
http://www.law.cornell.edu/uscode/28/636.html
jjr19 the correct local rules for middle branch web link is: http://www.flmd.uscourts.gov/Forms/USDC-MDFL-LocalRules5-2006.pdf
This is the working patent law link:
http://www.uspto.gov/web/offices/pac/mpep/mpep_e8r6_appxl.pdf
If anybody is intrested in patent laws http://www.uspto.gov/web/offices/pac/mpep/mpec_e8r6_appxl.pdf go to 35 U.S.C. 284 damages. Good reading I readed some where that the defense has to make their case that the didn't infringe on a patent. The patent holder has all the rights. Sorry about the link when you clik on the link and if their is a square box that comes up with BING in the right corrner try to type the weg page in their it might work.
fivestar Thanks for all your info. I have to agree with you on the judge not going in Toyota favor I read the district Judge judges on Summary judgement not the Magistrate Judge http://.law.cornell.edu/uscode/28/636.html/ e 636 (b) (1) (a) So it is going to court. Sorry about my links they seam not to work.
jjr19 I was going to post this this am.This might answere some of your questions. Read post 4197 Case management Report about 3/4 the way down #9 they all ready consented to the U.S Magistrate Judge. go down a next #10 to me by checking X do not Request it must be tract 2 ( tract two the court likes to get it done in two years) Note in 11 their is a X by this Jury not a X in non Juty Trial. http://www.flmd.uscourts.gov/Forms/USDC-MDFL-LocalRules5-2006.pfd for track two info is in chapter 3 Rule 3.05 Case Management (2) (E)
jackson Your are lucky you found it last week. You save some money if you want to save more money you best move on.Knowing them they will hacve another reverse split. They are professional bridge sellers.
One thing for sure is that they have appointed a judge for the trial. To me it still could go to trial jury. Didn't say if Solomon could see Toyota confidential papers. Why would they appoint a judge if it was going to be denided?
Some good PR and some bad PR since last post.
fivestar Are you keeping track to see if the judge as come up with an early ruling it is supposed to be within 11 days of 7/17 2009 as I read it.
Oldes time on the board is Oct. 2007 alot of newer ones per the PR.
Must be everybody on this board is buying up 10% Some news on 21 about bond sales first to try out. on yahoo finance
getmoreshares All I can tell you is it is still their. I use to fish their next to where they unload salt for the roads and marble from the mines to ship over seas. Live about 30 miles from it. When I cross over the U.S. and Canada bridge you can see it. I guess one reason they don't have any debt is because they want to have other co. get their equipment. LOL Not in the stock but watch it for a couple of years
At last I got to talk with someone at Equiti trend about CTGI but they are just like us. They have not heard any thing also.
thegreatgate is it because of the stockholders meeting?
fivestar Thanks for the info. I hope solomon can come back with something good in 30 days if the judge rules against them in 11 days.
lowman Maybe we should keep tract of the FDA approvals. (ADDITIONALLY WE HAVE SUCCESSFULLY TESTED OUR PROTOTYPE FOR END TO END ANASTOMOSIS AND ARE WORKING TOWARDS BEGINNING THE REGUTATORY PROCESS TOWARD THE END OF 2008) I was talking to my hospital's MRI guy about this. He was very impressed about it. He said it would go good with some new precedures that they were doing. He said the names of them but I think he was speeking another language.
fivestar Thanks for all the information. I was woundering if the court has ruled on Toyota's summary judgment. (Which is due no later than July.20 2009) or Has Toyota filed the papers that are due on or befor July 20 2009
wzebra33 If you was woundering what leverage can do to a closed end fund check out RMR RDR RFR ect. all from the same company they had to sell some of their holding at a steep discount to cover the leverage they (closed end funds) have to have a 2 to 1 ratio of leverage to holdings. The above are now all in one. NRO was another but I think it is going to make it. I still have some of NRO. What I do is look NRO news or SEC fililgs look for NQ at the end of the PR or SEC fileing thiis gives you their holdings (amost all closed end funds have this). I let them do the most of the DD. Then I go to http://www.quantumonline.com/index.cfm sign in is free they have a list of all the preferreds and some exchange traded debt with their S&P Moodies rating every thing that gives you dividends it is where I found PVX I sold my SFI-E preferreds paying me 60%+ dividen I bought CTGI because I think it is a zip code changing co. click on the post I wrote this AM and click on the link their. Go to about 14 min in and if it intrest you listen to it all.
wzebra33 check http://www.etfconnect.com/select/FindAFund.aspx You can find out what leverage they have compare with other closed end funds ect. If you have not allready done so.
wzebra33' I have been in HIO and CIK when they were about 18% in my retirement IRA They make up for the 3% CD I like then because they are not leverage. They might get in trouble but only one holding at a time. I thought about AGD and AOD but did not like them moving their holding around at that time loseing money Also did't like them going from dividend to another dividend stock. Espically with my retirement money. I could see it going down hill if every thing did not go good. It is ok with reg money not depend on for living.Was in PVX but got out because I didn't know the taxes in canada. I go their often. Was not in my IRA. I will check on the others. Look into AINV They have a little leverage I think they pay around 18% I am in also SSRAP Sears debt ( HLNQ Hilton hotel debt. They are own by Symbol BX Blackstone group.)
jagman You might be skeptical but have your wife look at the slide presentation. http://hosted.mediasite.com/hosted4/viewer/?peid=5f1f6769-e59f-4b0f-bcd4-af0a1bda8326 Go in to it about 14 min. I my self would like to go around with a whole lung instead of a part of one. If I had to go for that kind of surgery. I would like to have my intestine done like they show. Instead waiting a couple weeks after surgery to see if their was going to be leaking around the staples that will cause infection and be life threatening. The above two is the main reason that I am in it. When it was $2.00 I wished I could get in it as low as lowman did now I can. You can call me crasy but don't call me late for supper. I sold some preferred stock that I was getting over 60% intrest onto get in. I still have some powder left. Cash is king only if you can't get anything better.
A little news on yahoo finance about a hotel in hawaii.
surfcity128 Thanks for the info.
down 43% but their was more buying than selling per the trades opn ihub. But you could say they were even.
fivestar How I read it we Could know 11 days after July 20 2009 if the judge decides in Solomon favor if we go to trial. I wounder if Akio Toyoda's meeting with GM in Aug. is of his good heart or is feeling pressure from Solomon. It seams they want to give GM some of their prius teck. I saw this also 6/6/06 in Japan Times http://business.techwhack.com/5380-toyota-prius-3 also check out Toyota said to consider offering prius hybrid to GM (in blue at the end of artical)