You are techincally correct. As one of the recent
dissents said, Festo is talking about an exception to
an exception, to an exception to a rule.
But, to say that one of the most important lines of
cases on prosecution history estoppel (PHE) is not
about the DOE is akin to saying a case about fair use
is not about copyright infringment. As you said in
reference to the later, it is sort of a chicken and
the egg situation. You can't determine the reach of
the DOE without considering the effects of PHE.
I analyze these situations regularly for clients and
can only say that there is little that is
straightforward about this analysis when it is applied
to facts. It is much like the four factors of fair use
- easy test to state, hard to apply with certainty.
Which reminds me, we are a bit off topic. Sorry list.
keith
- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
> Festo wasn't about the elements of the Doctrine of
> Equivalents itself, but
> about whether the doctrine can be applied when a
> claim had been amended (and
> if the patentee was precluded from using it).
>
> -Bodi
>
>
> ----- Original Message -----
> From: "Keith Tabor" <ket354[_at_]yahoo.com>
> To: "CNI-COPYRIGHT -- Copyright & Intellectual
> Property"
> <CNI-COPYRIGHT[_at_]cni.org>
> Sent: Monday, September 29, 2003 4:01 PM
> Subject: [CNI-(C)] Re: Growing global patenting of
> art and entertainment
>
>
> >
> > Referring to the DOE in Patent Law, "Robert F.
> Bodi"
> > <lawlists[_at_]bodi.com> wrote:
> >
> > "The test is actually pretty straightforward."
> >
> > Yeah, tell the Festo parties about it.
> >
> > The rest of your responses were far more accurate.
> >
> > Keith
> >
> > __________________________________
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Received on Wed Oct 01 2003 - 20:15:10 GMT