Why Festo Will Change Your Patenting Strategy.
Mondaq Business Briefing › Nbr. 2002, June 2002
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Tips on writing patents
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Why Festo Will Change Your Patenting Strategy.
By Allen R. Jensen and Stacy D. Lewis
A version of this article appeared in the April 2001 edition of Managing Intellectual Property Introduction The patent law of the United States has undergone some rather significant changes in the past few years. From Congress, to comply with provisions of GATT and NAFTA, came a new 20-year patent term. From the courts and the USPTO came the patentability of software and business-method patents. And from the Supreme Court and the Federal Circuit came a series of cases on a vital principle in American patent law called the doctrine of equivalents. First, long ago, the Supreme Court decided the Graver Tank case. Then came two Hilton Davis decisions, one from the Federal Circuit, the other from the Supreme Court - both dramatically altering the doctrine of equivalents. And just recently the Federal Circuit changed the law on the doctrine of equivalents even more when it decided Festo, a case destined to affect the patenting strategy of any company interested in obtaining U.S. patent protection. The Doctrine of Equivalents Under American patent law, a patent owner makes out a case of literal infringement by proving that the accused device contains features identical to each element of an individual patent claim. If, for example, the patent covers a manufacturing process and calls for a particular temperature range, then an accused process taking place one degree outside that range does not literally infringe the patent. If the patent covers a semiconductor chip and calls for a particular thickness of the substrate, then an accused chip with a substrate just microscopically thicker or thinner than the one claimed does not literally infringe the patent. The federal courts in the United States recognized early on that unscrupulous copyists could appropriate the intel...See the full content of this document
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