The patent bar is biting its nails waiting to see what the Supreme Court will do with the CAFC case Festo. Some are in favor of, and some oppose, Festo‘s radical cutback of the doctrine of equivalents (DOE). Most believe the Supremes will pare back the CAFC decision somewhat (i.e., will breath a little more life back into the DOE), and/or may remand back to the CAFC.
For some good poop, see: Patent rule pending, Electronic Business Online, March 2002; and IEEE USA background material on Festo. See also the CAFC’s Festo decision; the Intel Amicus Brief [PDF] (the Statement of Interest is particularly interesting); and the oral arguments in Festo [PDF].
Particularly interesting in the oral arguments before the Supreme Court was this exchange between Bork, arguing on behalf of Festo and one of the Justices (Breyer or Rehnquist, perhaps) (transcript p. 11): “MR. BORK: That is true, but what they have suggested in effect is that the lawyer put into the literal claims he files a claim for all the equivalents that he can foresee. Now, he can’t foresee most of the equivalents, and if he did that, I think you’d have a patent claim that would look roughly like the tax code.
QUESTION: No, because they have ways of doing it. They say all the things like, or they say — you know, I can’t remember. There’s a special technical word for it where you — you try to do it in terms of function. There are ways of doing it.
MR. BORK: Function, way and result.” Bork here confuses “function, way, result” (from the DOE) with “means-plus-function” claim elements per section 112, para. 6. Apparently, a big name was more important to Festo than someone who understands patent law.
