By Jason Rantanen
DePaul Professor Joshua Sarnoff has a new article addressing a recently reinvigorated subject: the doctrine of equivalents. In Correcting Misunderstandings of Literal Infringement Scope Regarding After-Arising Technologies Protected By the Doctrine of Equivalents, forthcoming in the Akron Law Review, Professor Sarnoff argues that while it is conventional wisdom that, for purposes of ‘literal’ infringement, interpreted claim meaning and the application of such meaning can expand over time to encompass after-arising, equivalent technologies, this conventional wisdom is wrong: “current case law regarding literal infringement does not authorize claims to literally encompass or apply to after-arising technologies.” Id. at 6.
The term “after-arising technologies” refers to the idea that there are technologies that are developed after an application is filed or a claim is written. Due to the centrality of time to patent law, a central question in patent law is whether a patent’s claims can (and should) encompass technologies that were unknown–and indeed may have been unforseeable–at the time the claim was drafted. Excellent examples of this problem can be found in Kevin E. Collins, The Reach of Literal Claim Scope into After-Arising Technology: On Thing Construction and the Meaning of Meaning, 41 Conn. L. Rev. 493 (2008) and Robert P. Merges & John F. Duffy, Patent Law and Policy: Cases and Materials, 7th ed. (2017), at 273-277 (discussing the “temporal paradox” mostly in the context of enablement).
Professor Sarnoff advances his premise through several arguments, drawing from the Federal Circuit’s precedent in Schering Corp. v. Amgen, which “limits the temporal meaning and scope of application for literal infringement to equivalent technologies known to be embodiments of the claim language as of effective filing date of the claim,” as well the statutory interpretive rule of § 112(f). Sarnoff at 3.
Central to Professor Sarnoff’s premise is the corollary that:
If claim meaning or the scope of application of such meaning can expand over time for literal infringement purposes, then there is less need to resort to the doctrine of equivalents to protect against after-arising technologies. However, if claim meaning or application scope is limited to technologies that were known as of the filing date to be claim embodiments, then the doctrine of equivalents is necessary for any such protection.
Id. at 1. Thus, Professor Sarnoff argues, decreased ability to rely on literal claim scope to reach after-arising technologies puts more pressure on the doctrine of equivalents–indeed, it’s ability to encompass after-arising technologies has been offered as a primary justification for the doctrine. But this additional pressure creates its own problems given the fuzziness of scope that the doctrine of equivalents allows. Restricting literal claim scope to known embodiments may also conflict with the ‘”pioneering invention patent doctrine,” to the except that doctrine continues to be viable.
Read the whole article here: http://ssrn.com/abstract=3549932
Shifty,
This: link to patentlyo.com
Is a way to add a comment to further a discussion that is on point.
Maybe try that instead of layering one attempted deceptive gotcha attempt on top of another….
Wow! That is so neat! Now let’s see if you can “link” to your statement of April 8, 2020 7:13 pm, comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020, where that pesky written record shows that when your own statement is read back to you, you say it’s an outright lie. Or just pound the table and make some more stuff up.
You are still trying to spin that wrong.
Think of it this way:
I said that I said
I said that you said
You said that I said
You said that you said
Four different things.
Now the thing you point to was not just misstated by you once, but twice.
Each time I asked that you go back and grab the context of the discussion (which of course you would not).
If you want to continue to pursue this, I will suggest (yet again) that you go back to that context.
If you don’t, meh, you will just continue to look the f001.
There is no “spin,” Snowflake. You are pounding the table and making stuff up — again. Why did you not provide the link to that pesky written record? Do that, then “xplain” how you did not call your own statement, read back to you verbatim, an outright lie. April 8, 2020 7:13 pm, comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020.
no pounding
no making things up
You are misconstruing the twice-removed quote.
As I have noted, and note again, put that in its original context.
Then we can discuss.
Until then, meh, just games from you (and none too exciting at that).
by the by, here is the ‘you quote me” statement:
link to patentlyo.com
As I noted at 10.1.1, you are not paying attention to the “you” and “I.”
The original context of this quote was you trying to play cutsie with wanting an ipsis verbis statement from me when I was explaining how your accusation of my being ageist fell flat.
All you had to do was paraphrase the words I used in my explication (which were on target).
Instead, YOU coyly replied that your words were not my exact words — even as the meaning of your words and my words were the same.
You got busted playing a silly game.
This sent you into a tizzy, in which you then spread your mischaracterizations across at least two different threads, in at least three different places.
Too bad for you, ALL of that traces back (directly) to you being busted for playing your silly game.
But hey, you love to keep on digging at the bottom of the hole that you have put yourself into, and this is (highly likely) no different.
As I have said, you just don’t have the mental chops to play with me. As has happened every single other time, you will lose.
But you can take some solace, you are losing to one of the best.
[sigh] So much table-pounding based on your wrong link, Snowflake. Link to April 8, 2020 7:13 pm, comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020. Or pound the table some more and make more stuff up. [we know what your choice will be]
no table pounding
not the wrong link — as I have repeatedly stated, you need to provide the context.
That you don’t like the context is pretty telling.
[sigh]
Patently-O Bits and Bytes, March 30, 2020.
A. Lincoln, April 8, 2020 at 6:23 pm, Comment 5.1.1.
— Interesting. Are you the person who said “Yes, you ‘quoted’ me at the same time attempted a game of ignoring the meaning of the quote and tried to duck around the fact that YOU made up the notion that somehow MY ‘direct quote” was an attempt to directly quote you — which was never the case.” —
[a direct quote of what anon typed on April 4, 2020 at 7:49 pm, under Patently O, “Sarnoff on After-Arising Technologies and the Doctrine of Equivalents.” Hence, the quotation marks.]
— to which anon replied, April 8, 2020 at 7:13 pm Comment 5.1.1.2.
“… that last line of yours (was never the case) is an outright
L
I
E”. —
That pesky written record. Now pound the table and make some more stuff up, Your Majesty.
No need for [sigh]ing — just supply the necessary context.
Oh wait, that would expose your game playing…
For my part, still no pounding the table and no making stuff up (hint: I supplied context, which of course you did not like).
… and I LOVE that you keep digging fur10usly with the “her majesty” reference, as you only employ an ad hominem that has been shown to be baseless (with recent models showing that the person who first attempted that sleight is off a mere 3300%).
Your frantic digging pace, placing you ever in the wrong direction is rather entertaining.
I have to wonder if you even realize what you are doing to yourself in your obsess10n over me.
Ok. Now is your chance, Your Majesty. Fill this room with your intelligence. Explain to us the “context.” [or, just pound the table and make some more stuff up]
Repeating memes without thought or care of what you are saying is a meme onto itself.
(It’s not a good one mind you, as but one inclusion like the ‘majesty’ meme that has been shown to be woefully out of sync with reality d00ms the entire jumble)
But when have you actually cared about anything except for providing attention to me?
Ding Ding Ding! Vague Smiley Face !!!
We’ve been through this before, Your Majesty. What your tells are and what they indicate. Should we review?
Let’s focus on that ‘majesty’ line — it’s your newest game, and one that is absolutely clear that all that you are interested in is your obsess10n of me.
Do you remember who first said it?
Do you remember why?
Did you bother seeing that person’s 3300% mistake?
Will you be straightforward about this little and direct point?
As always, your choice.
Ding Ding Ding! “game” !!!
He just can’t help it !
And, surprise, you are wrong yet again, Snowflake. I called you the Queen of Denial long before somebody else noticed it. Because, you are. Just scroll up a bit for proof.
LOL you did eh?
Show me.
Where did you ‘first’ use that term?
Where did your use of the ‘royalty’ meme originate?
This is nothing more than yet another
L
I
E
from you.
You can ‘Ding Dance’ all you want (and we both know that that signifies: your obsess10n with me, and nothing else).
You can continue to self-flagellate with your error of meme and tell.
But all of this is nothing more than the same from you:
b
o
o
r
i
n
g
“Just scroll up a bit for proof.”
I did that.
I scrolled all the way up to the start of this sub-thread at post 10, visited the hyperlink that I provided for you, and therein was the proof that backs my position.
You should be more careful of asking of others that which you lack yourself.
So many words, Snowflake. 2 different posts? Just because of the flagging of a tell and a correction and a cite to the written record. Who exactly is “obsessed?”
Just because….?
Your statement does not make sense.
The first post wrecks your precious claim that you have long used the ‘royal’ meme.
Clearly, you have not.
The second post touches on a different aspect, highlighting the fact that all that you have offered are your accusations. Zero evidence. And your posts that merely show you taking things out of context are simply evidence against you. I provided you a hyperlink to the context and you have provided, well, nothing but your games.
You ask “Who exactly is “obsessed?”” and of course the answer is you. Tell me again what percentage of YOUR posts are dedicated SOLELY to a single poster? That is the indicator of obsess10n, my pal Shifty.
Ding Ding Ding! “Shifty” !!!
And you were doing so good !!
slipping back into the dry (heaves) of not remembering the explanation of ‘Shifty’….
beyond banal, my friend.
Come now, TRY to show some imagination.
Ding Ding Ding! “Shifty” !!!
And, now, you’re not even trying. Again.
Same comment as on the newer thread — because you ploy the same game here:
Can you be any less original?
Are you the sane person who said your own statement “is an outright
L
I
E”
?
Wrong spin Shifty.
(wrong thread too — but that appears to be one of your ‘new’ memes)
Snowflake, why are you the one who spoke up admitting that you are the one who said your own statement “is an outright
L
I
E”
?
May it be because of your April 8, 2020 7:13 pm comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020? [and BTW, it’s relevant to all threads where you type something, which is all threads]
LOL – your idea of “relevance” is asinine.
You are now at:
216 out of 229 (still 94%)
and
S. Morse moniker still at 100%
A. Lincoln moniker now at 98.0%
Your obsess10n is noted.
What a marvelous riposte! Too bad about your April 8, 2020 7:13 pm comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020. Written records are such pesky things. Makes one want to pound the table and make stuff up, no?
Me?
Not at all.
You?
Well, ‘we’ all see that, eh?
Ding Ding Ding! Vague Smiley Face !!!
He just can’t help it with the tells!
And your meme of consistently being wrong is being displayed yet again.
That self-flagellation is just not all that pretty.
… and Shifty, you are still trying a deliberately wrong spin.
You do realize that you prove my point by attempting this particular game, eh?
Ding Ding Ding! “game” !!!
Just can’t help the tells. But you’re getting into that place where you’re not making even a little bit of sense, Snowflake. So what is your “spin” concerning you saying, when your own statement is read back to you, that’s an outright lie? Mind you, we have the written record. [April 8, 2020 7:13 pm comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020.] What is your “spin?”
Yet again with the weak arse attempt at switching things to me…
The spin is not mine — it is yours.
That written record just does not help you. We’ve been over this.
“That written record just does not help you.”
The written record shows that when your own statement is read back to you, you say that’s an outright lie. April 8, 2020 7:13 pm comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020.
Fill this room with your intelligence. Show why the written record is wrong. Now is your chance. What is your “spin?”
Your childish game has been exposed.
You try to shift the spin to be my spin, when I am not the one doing the spinning.
That written record does not help you.
That written record belies your feeble game.
Maybe try something on point instead?
These attempts of yours to try some gotcha just will not work.
Ding Ding Ding! “game” !!!
Your tell that you have nothing substantive to say. Aside from that, you’ve gotten into that place where nothing you say makes sense, Snowflake. How about addressing that written record? Slow down; take your time. April 8, 2020 7:13 pm comment 5.1.1.2 under Patently-O Bits and Bytes, March 30, 2020.
Wash rinse repeat
Yawn.
This going “all simple in the head” is not working for you, Your Majesty.
You take a week to respond, and that is all can come up with?
Y
A
W
N
Y
A
W
N
Is a week more than eight days?
anon
April 10, 2020 at 10:22 pm: (Wash rinse repeat — Yawn.)
…
A. Lincoln
April 17, 2020 at 8:12 pm: (This going “all simple in the…)
So why are you asking about 8 days?
“So why are you asking about 8 days?”
In the fullness of time, thou shalt know. (or not, because we know by inductive reasoning thou art simple in the head)
Lol — you think that your reply (directly to me) buried inside this thread that is nothing but a mindless game has any real comparison to my starting a new comparative post that provides a legal view by contrasting two CAFC decisions by interposing opposite conclusions together?
Really?
That “thou art simple in the head” accusation of yours fits YOU, rather than I.
How delicious it is when your attempted putdowns only have the effect of you digging your h0le ever deeper.
I’ve never even heard of anyone who could muff the answer to “is a week more than eight days?”
You actually muffed the answer to “Is a week more than eight days?”
That’s it from you? in stereo? yawn
The more I look at his, the more I see this as just another ploy to misrepresent science and patent law to advance an agenda. The game is to try and make the patent claims as narrow as possible to limit the patent right. Given the rapid rate of development of technology there is little chance that at least one element will be an improvement. And the biggest game is to try and take out the person skilled in the art as the viewpoint and insert a judge’s viewpoint.
Again, we need financial disclosures and I think DC is going to have to think about the role he has played in the destruction of the patent system by giving the academic who have been exposed as taking money and yet presenting themselves as academics when they are, in fact, large corporate advocates.
Consider extreme cases. If you claim a door and the wood changes to an improved wood, does that still read on the claim? If an alloy and an element is made of the alloy does that still read on the claim?
The t r o lls below are making ridiculous arguments that somehow some faster processor has to be enabled when the faster processor is not what is claimed, i.e., the claims are still non-obvious with the old slower processor. And then they want to use this as an excuse to try and break up claims to a point of novelty analysis. It just never ends with these people.
Just ridiculous arguments that can only have traction with the science and technology illiterate which is always what the Lemley’s of the world play to.
“The t r o lls below are making ridiculous arguments that somehow some faster processor has to be enabled when the faster processor is not what is claimed, i.e., the claims are still non-obvious with the old slower processor. And then they want to use this as an excuse to try and break up claims to a point of novelty analysis. It just never ends with these people.”
Nice job failing to engage with the argument at all. I agree with you that claims should be able to cover future processors. But there should be some reasoning for why this isn’t part of the enablement requirement. If the system is based on “well, the CAFC gets it. No need to figure out an explanation”, that is a tenuous system that can easily fall apart when the daycomes that a majority of the CAFC doesn’t get it. That’s bad for the patent system and your wallet, so you would do well to not dismiss the issue.
“Nice job failing to engage with the argument at all.”
…says the guy who has made it his own personal policy to NOT engage…
Paul F. Morgan – THIS is a ” nice example of ironic humor.”
Ben too is not only chasing phantoms (see link to patentlyo.com ), but is under the mistaken notion that his phantom IS the argument to be engaged with.
Ben, obviously this is an attempt to import 112 into the infringement analysis of all elements. You again try to limit the patent right by creating new barriers and generating new words “strict enablement”.
The attempt is an attempt to try and change the current analysis for infringement and you say I fail because I don’t focus on an attempt to import new limitations on the infringement analysis. No logically consistent.
And let’s all just be real.
These people would not be spending their time generating these nonsensical arguments if they weren’t being paid for it or weren’t hoping for a job to get paid for weakening patents.
I actually think it is unethical and immoral for this blog to post articles as “academic” articles when you, in fact, do not know if the “professor” is acting as a large corporate advocate or not.
I disagree — but only with the notion that there must be a “getting paid” angle.
Some really do have a philosophical problem with the State granting personal property rights (from a Left point of view).
There is more than one front to the war on strong patent rights.
Perhaps, at this time, we could all use a little levity.
Anon said, below: “Yes, you ‘quoted’ me at the same time attempted a game of ignoring the meaning of the quote and tried to duck around the fact that YOU made up the notion that somehow MY ‘direct quote” was an attempt to directly quote you — which was never the case.”
To quote Paul Harvey, let’s hear the rest of the story.
(and there shall be no levity — for you)
That laughter you hear is not laughter with you.
A nice example of ironic humor below is “..nothing more than“If I could have patent law my way” prescriptive (rather than objective descriptive) writing. Not worth reading.”
That is hardly limited to academics, as hundreds of patent blog comments over the years have illustrated.
Yours included, Paul.
And note as well when YOU
F
A
I
L
to engage on the merits of a dialogue, and instead, merely snipe from the sidelines.
(you might also try to realize that blogging is not passed off as the Academic’s piece is attempted to be passed off)
Ironic humor indeed. You are trying too hard.
“as hundreds of patent blog comments over the year”
case in point:
Blog comments seek an active EXCHANGE.
Academic articles do not.
Your willingness to confuse and conflate these two things has MORE to do with your not having a spine (and lacking an ability to have your legal points prevail IN an exchange).
There is a world of difference. And it’s easy to see why you don’t want to see that difference.
While perusing the archives for a different matter, I came across this:
link to patentlyo.com
It appears that Paul’s attempt to silence blog comments (here finding an invisible irony) is NOT a new trick.
The reply to Paul’s past attempt applies here as well.
I didn’t find it humorous, as that articulation of the distinction between descriptive and prescriptive demonstrated how previous instances of ‘misunderstanding’ were actually willful provocation.
What’s your point, Ben?
There is just no getting around that you are dealing with t r olls as I outline below.
If there is no interest in an intellectually honest conversation, then there is really no point.
But there IS a point: silence only breeds more posts, and then you get the illiterate even more emboldened because “I read it on a patent blog”….
When propaganda goes unchallenged, propaganda wins.
Note as well that on the actual points put to each and every one of these anti-patentists, there is NO inte11ectually honest engagement.
Only cowardice and deceit.
So…under this theory would even a minor/tangential improvement (say, in a particular type of nail/screw/glue being used somewhere in an apparatus…) mean that it wasn’t literally infringing the claim?
That would seem to gut most patents pretty hard…
You alight upon one of the fallacies of the ‘single objective physical structure’ claim form proponents.
In a nutshell (and ALL patent practitioners should be well versed in this): Ladders of Abstraction.
My guess is that it would gut pretty much all claims as the infringer could just make a minor improvement to any element recited in the claim and they would be out of literal infringement.
Maybe just change an atom on a molecule too that is one of those hanger on atoms.
I think we need some evidence of where this guy is getting his money.
This is a very similar game about having to enable every possible way in a specification when this is impossible with modern technology in many fields.
It also is a game of trying to appeal to the ignorant masses in making this popular arguments.
It is sickening to see that the dialogue is still at this level.