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Post Mortem of the Reverse Doctrine of Equivalents
The Federal Circuit in Tate Access Floors, Inc. v. Interface Architectural, 279 F.3d 1357, 1368 (2002), announced the death of the Reverse Doctrine of Equivalents (RDOE). The Supreme Court created the RDOE as an equitable release valve for accused devices that literally infringe claims. The RDOE applies “where a device is so far changed in principle from a patented article that it performs the same or a similar function in a substantially different way, but nevertheless falls within the literal words of the claim.” Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 608-609 (1950); see also Boyden Power-Brake Co. v. Westinghouse, 170 U.S. 537 (1898). In such a case, the RDOE “may be used to restrict the claim and defeat the patentee's action for infringement.” Graver Tank, 399 U.S. at 609.
In Tate Access, the court reasons that the RDOE is superfluous because its function was replaced, after Graver Tank, with '112 of the Patent Act. According to the court, the requirements of '112, such as written description and enablement, are “co-extensive with the broadest possible reach of the [RDOE]” because '112 prevents excessively broad claims from being valid and, especially in the case of means-plus-function claims under '112 paragraph 6, acts to reduce the scope of claims. Tate Access, 279 F.3d at 1368. As discussed below, not only are the court's reasons for the RDOE's supposed death inaccurate, they reveal how the ghost of the RDOE lives on in claim construction and how it may be stronger in death than in life.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.