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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.
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Bit Parts
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