Foreseeability as a Bar to the Doctrine of Equivalents
Jeremy T. Marr Several opinions in these cases suggest that a patentee should not be able to invoke the doctrine of equivalents to obtain protection from equivalents that one skilled in the art would have reasonably foreseen before the patent issued. Federal Circuit Judge Rader, in particular, is a strong advocate of such a “foreseeability bar.” The United States and the Institute of Electrical and Electronics Engineers (IEEE) also advanced the idea in their amici briefs to the Supreme Court in Festo Corp. v. Shoketsu Kinzoku Kogyu Kabushiki Co., the Court’s latest case involving the issue. The Court’s opinion in...