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The Reverse Doctrine of Equivalents Part 1 of 2

By Justin S. Rerko
May 01, 2003

The ability of patents to encourage innovation by granting exclusive rights is well-recognized. However, patents can serve an antithetical role as well by, in certain circumstances, deterring, rather than encouraging, innovation.

The Reverse Doctrine of Equivalents can help to reduce the potential for patents to hinder innovation. Created by the U.S. Supreme Court in 1898, the Reverse Doctrine of Equivalents provides an accused infringer with an opportunity to escape liability if it can demonstrate that the device (or process) at issue is so far changed in principle from the patented article (or process) that the device performs the same or similar function as the patented article but in a substantially different way. Boyden Power-Brake Co. v. Westinghouse, 170 U.S. 537 (1898).

As an initial impression, readers familiar with the current Federal Circuit emphasis on strict claim construction may believe that the Reverse Doctrine of Equivalents would not be well received in the Federal Circuit. On the contrary, the Federal Circuit has never demonstrated an attitude adverse to this doctrine.

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