For a number of years, U.S. courts have noted that the doctrine of equivalents has been unworkable. This article explains that as American courts move toward a more holistic approach to claim interpretation, the doctrine of equivalents will become increasingly unnecessary as a means of expanding patent scope. The author asserts that adopting a "person having ordinary skill in the art" approach to claim interpretation and eliminating the doctrine of equivalents in patent infringement cases would benefit patent law in several ways: (1) when courts interpret patent claims from the perspective of a person reasonably skilled in the art, patentees would be better able to predict and control the scope of their intellectual property rights during patent prosecution; (2) when courts eliminate the doctrine of equivalents in conjunction with the reasonableness standard, patents would better fulfill their notice function, and others skilled in the art will be better able to determine the scope of prior patents; (3) when courts eliminate the doctrine of equivalents, competition would also improve because patentees will no longer receive protection for after-arising technologies, and other inventors will be better able to assess risk of infringement before they enter the market.
Phillips v. AWH, Corp., A Doctrine of Equivalents Case?,
12 Marq. Intellectual Property L. Rev. 385
Available at: http://scholarship.law.marquette.edu/iplr/vol12/iss2/5