On September 26, 2003, the Federal Circuit decided Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.
Federal Circuit Decides <i>Festo</i> on Remand from Supreme Court
On September 26, 2003, the Federal Circuit decided <i>Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.,</i> 344 F.3d 1359 (Fed. Cir. 2003), which was on remand from the Supreme Court. In its opinion, the Federal Circuit summarized the current law on prosecution history estoppel and shed some light on the applicability of the Supreme Court's criteria for rebutting the presumption of total surrender that results when a narrowing amendment is made for reasons substantially related to patentability. The Federal Circuit's decision appears to be directed toward a very limited exception to the total surrender presumption, and the minority opinions illustrate that there is tension within the Federal Circuit regarding the approach to barring equivalents.
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