以這一篇文章「One Plus One Can Equal One – In Patent Law」，作為這一整個主題的結束。
One major principle stressed by the Court is adherence to the “all-elements” rule, requiring just the determination of equivalency proceed on an element-by-element inquiry, rather than comparing the overall similarity of the accused device as a whole to the claims. This is to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety. When applying the test, the Court said, “[a] focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such elements should reduce considerably the imprecision of whatever language is used.”
“element-by-element inquiry”是為了防止專利權人擴大均等論的適用，有效地刪除一個元件主張均等論。
Does this mean that when an accused device entirely lacks an element, one gets away with it no matter how similar the device is to the claims in other respects?
接著看有名的Festo案子，這案子常聽到，第一次看到它還有這個爭點，先前還一直再找有關利用均等論，來有效刪去 claim中無效“非必要”元件的判例，原來“遠在天邊近在眼前”，從很多人口中聽到這個案子，卻沒有聽到這爭點。
Instead, the accused infringer argued that because its two-way sealing ring was only one element, it did not meet the doctrine of equivalents requirement of the “all-elements” rule, and so was summarily not equivalent to the pair of rings in the patent claim. The court decided against the infringer and held that the accused device was not required to have all the components of the claimed invention for the device to infringe. Did this violate the “all elements” rule? Not so, said the court, “this rule does not require a one-to-one correspondence of components.”
侵權人爭論他的元件只有一個，而請求項卻說有兩個，因此不符合“all-elements” rule，不適用均等論，必竟均等論要 element-by-element inquiry 對吧。法院卻認為「this rule does not require a one-to-one correspondence of components」。所以二個也可以等於一個。
這一篇文章真的很值得讀，解開了我很多的疑惑。接下來，看看作者怎麼解說“element”和“limitation”：
After this, one is tempted to look at elements and limitations in three different ways. First, a limitation is an element, in which case, the doctrine collapses into nothing more than a literal infringement test. Second, a limitation is not essential to an element; therefore so long as the process recited a pH step, there would be infringement. Third, a limitation may be essential to defining the element, in which case evidence is required in order to determine whether a person skilled in the art would have known of the limitation’s functional interchangeability with the one in the claims.
Never one to make bold statements, the Federal Circuit opted for the third choice which, after all, was the proper choice. At least, it is preferable to sleightful wordplay.
看到這個字「sleightful wordplay」，讓我不覺莞爾。
One major principle stressed by the Court is adherence to the “all-elements” rule, requiring just the determination of equivalency proceed on an element-by-element inquiry, rather than comparing the overall similarity of the accused device as a whole to the claims. This is to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety. When applying the test, the Court said, “[a] focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such elements should reduce considerably the imprecision of whatever language is used.”
“element-by-element inquiry”是為了防止專利權人擴大均等論的適用，有效地刪除一個元件主張均等論。
Does this mean that when an accused device entirely lacks an element, one gets away with it no matter how similar the device is to the claims in other respects?
接著看有名的Festo案子，這案子常聽到，第一次看到它還有這個爭點，先前還一直再找有關利用均等論，來有效刪去 claim中無效“非必要”元件的判例，原來“遠在天邊近在眼前”，從很多人口中聽到這個案子，卻沒有聽到這爭點。
Instead, the accused infringer argued that because its two-way sealing ring was only one element, it did not meet the doctrine of equivalents requirement of the “all-elements” rule, and so was summarily not equivalent to the pair of rings in the patent claim. The court decided against the infringer and held that the accused device was not required to have all the components of the claimed invention for the device to infringe. Did this violate the “all elements” rule? Not so, said the court, “this rule does not require a one-to-one correspondence of components.”
侵權人爭論他的元件只有一個，而請求項卻說有兩個，因此不符合“all-elements” rule，不適用均等論，必竟均等論要 element-by-element inquiry 對吧。法院卻認為「this rule does not require a one-to-one correspondence of components」。所以二個也可以等於一個。
這一篇文章真的很值得讀，解開了我很多的疑惑。接下來，看看作者怎麼解說“element”和“limitation”：
After this, one is tempted to look at elements and limitations in three different ways. First, a limitation is an element, in which case, the doctrine collapses into nothing more than a literal infringement test. Second, a limitation is not essential to an element; therefore so long as the process recited a pH step, there would be infringement. Third, a limitation may be essential to defining the element, in which case evidence is required in order to determine whether a person skilled in the art would have known of the limitation’s functional interchangeability with the one in the claims.
Never one to make bold statements, the Federal Circuit opted for the third choice which, after all, was the proper choice. At least, it is preferable to sleightful wordplay.
看到這個字「sleightful wordplay」，讓我不覺莞爾。
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