NEWS OF THE WEEK
LAW
January 14, 2002
Volume 80, Number 2
CENEAR 80 2 p. 8
ISSN 0009-2347
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Supreme Court Hears Patent Case

DAVID HANSON

The Supreme Court heard oral arguments last week on an old case with significant implications. Virtually all 1.2 million patents in force today could be affected by its decision.

The case is Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd., and it involves the patent for a robotic cylinder. At issue is a foundation of patent protection called the doctrine of equivalents, which prevents copycat inventors, who make an insignificant change to an invention, from getting a patent. In Festo, the U.S. Court of Appeals for the Federal Circuit ruled that if during the patent approval process an application is amended, all protection under the doctrine of equivalents is lost.

Supporters of the ruling, such as some major semiconductor manufacturers, say that the complete bar on equivalence claims would result in more patents being filed because all involved would know that an existing patent only covers what is precisely spelled out in the patent.

But many want the decision reversed, including research universities, chemical companies, and biotechnology firms. They say eliminating the doctrine of equivalents would be a disaster. The biotech firm Chiron claims in an amicus curiae (friend of the court) brief that "Festo provides a road map for a would-be copyist to avoid infringement by substituting a known, interchangeable amino acid at one position of a claimed protein."

The Supreme Court is not expected to issue a decision until this fall.

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