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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.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
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.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.