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« Merck Sharp & Dohme Corp. v. Wyeth LLC (Fed. Cir. 2019) | Main | Happy Thanksgiving from Patent Docs »

November 27, 2019

Comments

The opinion: "It is undisputed that Lifescan's meters neither convert multiple Cottrell current readings to analyte concentration measurements nor compare multiple analyte concentration measurements." What about the "same way" DOE requirement?
1. Performs substantially the same function
2. In substantially the same way
3. To obtain the same result
as the limitation literally recited in the patent claim. See Graver Tank & Manufacturing Co. v. Linde Air Products Co., (1950).

Paul: I think there could have been an issue with #2 (depending on the granularity of the analysis), but both the district court and Federal Circuit addressed the PHE issue (which was enough to preclude equivalents).

Thanks for the comment, and Happy Thanksgiving.

Mr. Morgan,

Elsewhere there appears to be a huge wailing and whining about how "out of control" or how "uncertain" DoE plays out.

And yet, as you point out here, the actual application of DoE (apart from whether any SINGLE individual application of such has been fully carried out) seems, well, abundantly straight forward.

It is not all that surprising the people raising such as an issue (and their other well known stances towards strong innovation protection systems).

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