IP class 6

non obviousness
-- framework for analysis: graham v. john deere

-- combining references: KSR v. teleflex
    * teaching, suggestion, or motivation (TSM) test - critiqued but not discarded
    * the PHOSITA and the need for the patent inducement

claim interpretation
-- procedural laws
    * judge or jury?
    * what effect on litigation costs and outcomes?
-- substantive issues: "ordinary and customary meaning"
    * sources of meaning: intrinsic or extrinsic sources?
    * rely on disinterested sources or on the inventor's duty to enable a PHOSITA?
    * issues of clarity, notice and fairness

35 USC s.271(a) 
"...whoever without authority makes, uses, offers to sell, or sells any patented invention, within the US, or imports into the US any patented invention during the term of the patent therefor, infringes the patent."

larami v. amron


any means that can

recap:
literal infringment - each E must be found in the item (larami)
very strict test, and may be that certain parties may get around parts of the claim but still imbody the patent, due to the imprecision of language for example. court's general principle is under written equivalents.

you can't say you made an object that performs the same function in the same way with the same result that it's something new because not literal: written equivalents

but we don't want the written equivalent to be too broad because it would engulf public domain

(warner-jenkinson) so we apply the all elements must be containing elements identical or equivalent to each claimed element. we break the claim down and look at the accused to see if we can find the exact same or equivalent to that element in the device or process.

this can create some complications, due to the fact that patents last over a perido in which product tech advances. so you can do same function, result but do so with tech that renders the way obsolete (hughes aircraft). is this infring by equivalents? what does it mean to do substantially in the same way? depends. does it change/ const preform in same way if you're doing with computer that didn't exist at time of patent creation?

we measure equivalents at time of infringment and not of patenting. but court said that changes in hughes were not enough to take the airplane tech out of the scope of the patent.

limits: all elements rule. and estoppel (festo). we allow the patentee to make out a claim of infring by equiv to be fair and not cheat them. but at the same time, we want them to be held to exactly what's disclosed. so for example, when the patentee discloses and the response to the rejection, the patentee amends/narrows the claim, they've conceded the examiner had a point that the original claim was unpatentabel and the consesion estops themselves from later claiming that he amended language captures something original not noticed. the patentee then has to prove that they didn't make the amendments in repsonse to the objections.