literal infringement : CAFC Alert

Guidance on the standard for “reasonable certainty” in an indefiniteness evaluation

Bernadette McGann | February 4, 2016

Akzo Nobel Coatings, Inc. v. Dow Chemical Co.

January 29, 2016

Before Lourie, Reyna and Chen. Opinion by Lourie.


The CAFC affirmed the District Court’s holding that the claims of the ‘956 patent are valid and not indefinite and affirmed the holding that the process of Dow does not infringe, either literally or DOE, the ‘956 patent. This case provides additional guidance on the reasonable certainty standard of Nautilus.

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Be Mindful that the Potential Reach of Claimed Components under the Doctrine of Equivalents Can Be Affected by Amendments to Claimed Sub-Components.

Stephen Parker | October 9, 2014

EMD Millipore Corporation v. Allpure Technologies, Inc. (Precedential Opinion).

September 29, 2014

Panel:  Prost, O’Malley and Hughes.  Opinion by Prost.


EMD Millipore Corporation (Millipore) appeals the District of Massachusetts decision that the accused infringer, Allpure Technologies, Inc. (Allpure) does not infringe its U.S. Patent No. 6,032,543 entitled a Device for Introduction and/or Withdrawal of a Medium into/from a Container, either literally or under the doctrine of equivalents.   The Federal Circuit affirmed that there was no literal infringement because the claims required a removable transfer member having a two part seal connected after removal, while the Allpure device had two parts of a seal separated after disassembly.   In addition, the Federal Circuit held that Allpure did not infringe under the doctrine of equivalents due to prosecution history estoppel  based on narrowing amendments limiting the transfer member to such a two part seal, along with a lack of any argument that the reasons for such amendments was not a substantial one related to patentability.

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Vitiation exclusion: a judicial determination ensuring that doctrine of equivalents does not overtake statutory function of claims in defining scope of exclusive rights

Rob Raheja | January 2, 2013

Deere & Co. v. Bush Hog

December 4, 2012

Panel:  Rader, Newman and Plager. Opinion by Rader.


The United States District Court for the Southern District of Iowa, among other things, construed the claimed term “into engagement with” of ‘980 Patent to require direct contact and construed “being secured to” of ‘980 Patent as “fastened or attached.” Based on this construction, the district court granted Bush Hog & Co. LLC’s and Great Plains Inc.’s motions for summary judgment of noninfringement by holding that Deere did not raise a genuine issue of material fact as to literal infringement because the upper deck walls do not come into contact with the lower deck walls in any of the accused products. In addition, the district court held that Deere could not assert infringement under the doctrine of equivalents because doing so would vitiate the “into engagement with” limitation. Because in the context of the ‘980 Patent “into engagement with” encompasses indirect contact, the Federal Circuit vacated the district court’s construction of this term, reversed the grant of summary judgment, and remanded for further proceedings. Also, the Federal Circuit found that the district court invoked vitiation exclusion in error by refusing to apply the doctrine of equivalents because “a reasonable jury could find that a small spacer connecting the upper and lower deck walls represents an insubstantial difference from direct contact.” Therefore, the Federal Circuit also vacated the grant of summary judgment of no infringement under the doctrine of equivalents.

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