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July 21, 2011

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Comments

Don,

In my opinion, this case was a "no brainer" that the equivalents were barred by prosecution history estoppel. I find it curious (and exasperating) that SCOTUS said in Festo that an equivalent which was "unforseeable" (and thus contrary to 35 USC 112, first paragraph or sixth paragraph) can be an equivalent for DOE purposes. As far as I can tell, this "unforseeability" argument hasn't worked.

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