Infringement Analysis under Doctrine of Equivalents- Pros and Cons of Elemental-byElement Test

Infringement Analysis under Doctrine of Equivalents- Pros and Cons of Elemental-byElement Test

 

Title
Infringement Analysis under Doctrine of Equivalents- Pros and Cons of Elemental-by Element Test
Author
Chih-Chieh Chen Shang-Jyh Liu
Keywords
doctrine of equivalents, insubstantial difference, elementby-element test, invention as a whole, hypothetical patent claim
Abstract
To constitute patent infringement under doctrine of equivalents, it dictates
that there must present insubstantial difference between claimed invention and
accusation. In Graver Tank, U.S. Surpreme Court utilized the so-called functionway-result
tripartite test to characterize the equivalency. There are two approachs
before CAFC: one is by element-by-element test, the other is by invention as a
whole. The outcomes of infringement analysis will hinge upon what accused
counterpart should be the subject of comparision. Elemental approach reveals
advantages when focusing counterpart on the component basis. However, we
found that this approach shows incompletely and adversely result during analysis
after reviewed the rationales underlying cases before CAFC. Via technical
discussion to the application of doctrine of equivalents, this article shows the
incomprehensive perspective of elemental approach and explores the entirety
approach as a necessity under certain circumstance.
Abstract Article

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