The doctrine of equivalents cannot be used to capture unclaimed subject matter disclosed in the specification.
Results for doctrine of equivalents
Separate patentability of allegedly infringing equivalent of an invention of a patent in suit does not require patentee to prove infringement under doctrine of equivalents by clear and convincing evidence, but rather by a preponderance of evidence.
Regarding prosecution history estoppel, the Supreme Court establishes a presumption that a narrowing amendment made for a reason related to patentability surrenders the entire territory between the original and amended claim limitations, and that this presumption may be rebutted under certain instances.
The Federal Circuit holds that rewriting a dependent claim into independent form, coupled with the cancelation of its original independent claim, gives rise to prosecution history estoppel.
A presumption of prosecution history estoppel may be rebutted by a showing of unforeseeability of the alleged equivalent at the time of the narrowing amendment or by a showing of tangentiality of the alleged equivalent with respect to the rationale for the narrowing amendment.