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subjectiveness in inventiveness aspects
Posted by Anonymous . updated on 2/26/2009
Hi,
Would anyone care to comment on the two doctrines that have been used by lawyers in infringement cases:
1. Doctrine of equivalence:
An accused product or process WILL INFRINGE though it is outside the literal terms of the claims, if it does THE SAME WORK in SUBSTANTIALLY THE SAME WAY to accomplish SUBSTANTIALLY THE SAME RESULTS as the patented product or process.
2. Reverse doctrine of equivalence:
Even where an accused product or process FALLS WITHIN the literal terms of a patent, if the accused product or process is so far changed in principle from the patented product or process, that it performs the same function in a SUBSTANTIALLY DIFFERENT way, infringement liability is unwarranted.
The example of soap-holder dish with suction cups (without having seen its specification/claims) would be a classic examples to be exploited by lawyers on account of both of the above doctrines, depending which side of the fence you are on?
My point is: most of the patents are 'modifications' over some prior art. Inventiveness being a very subjective issue, the examiners must rely on some logic/guidelines to determine it. Most battles legal battles must be fought over disagreement over one's logic??
Best,
Vijay
Answers (1)
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JimIvey
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I don't understand the question. You correctly summarize the Doctrine of Equivalents (DoE) and the Reverse Doctrine of Equivalent (RDoE), correctly note that the path through the Patent Office is important, and that legal battles (not just in patents) are over disagreements about logic -- perhaps that's the definition of a legal battle.
So, what's the question?
The juxtaposition of examination and infringement might hint at a point of confusion. The references reviewed by the examiner during prosecution will never be the same as the device/process accused of infringement -- they are mutually exclusive. To show this, consider an accused device which also qualifies as prior art -- if the claim covers it, the claim is anticipated. The short way to say it is, "That which infringes if after, anticipates if before."
So, that leaves us with two entirely separate and distinct analyses: (1) comparing the claims to prior art in the Patent Office and (2) comparing the claims to entirely different accused devices/processes in litigation. So, it's unlikely that questions regarding what the claims should have covered (really what the DoE and RDoE are about) would be dispositively determined during prosecution.
I hope that helps. Regards.
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