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Clarification of the ‘Vitiation Test” when
applying the Doctrine of Equivalents.
Adam Conrad
Deere & Co. v. Bush Hog, LLC, No. 2011-1629
(Dec. 4, 2012).
http://docs.justia.com/cases/federal/appellate-
courts/cafc/11-1629/11-1629-2012-12-04.pdf
A unanimous panel of the Fed Circuit reversed a
grant of summary judgment of non-infringement,
clarifying the limits of the “vitiation test” when
applying the doctrine of equivalents.
Deere & Co’s U.S. Patent 6,052,980 covers an
improvement in rotary cutters of the type that are
pulled behind a tractor for large-scale mowing. The
cutters often accumulate debris and can rust as a
result of moisture in the debris if not cleaned
properly. The patented invention reconfigures the
cutters to eliminate debris traps while maintaining
cutting efficiency by having front and rear portions
of an upper deck wall that are placed “into
engagement with, and being secured to” a lower
deck wall.
The district court construed the phrase “into
engagement with” as requiring direct contact
between the two deck walls. Because the deck
walls in the accused products do not directly contact
one another, the court granted summary judgment
of non-infringement based on this construction.
The district court also granted summary judgment
as to the doctrine of equivalents, holding that, under
its claim construction, deck walls are either in
December 2012
News From the Bench
Clarification of the “Vitiation Test” when applying the Doctrine
of Equivalents.
The “Success More Likely Than Not” and “Ordinary Observer”
Standards for a Preliminary Injunction in design patent
infringement.
eBay Revisited - A Normal Expectation of Injunction?
Fed Circuit invalidates Intema patent under §101, but its
reasoning highlights an inconsistency with the Supreme Court’s
Prometheus decision.
Apparently Obvious, But Not: When Secondary Considerations
Become Primary.
Hatch-Waxman’s Safe Harbor provision is not limited to Pre-
approval Activity.
PATENT Notes In This Issue
U.S. Patent Practice
When can Reissue be used to Cure Misconduct in Obtaining
a Patent?
Clean-Tech Bulletin
News from the Biofuels Front: Hard Lessons in Patent Drafting.
Quiz- Identify the IP Case in Rap Disguise.
Upcoming Events
New York partner Ethan Horwitz to speak at the Global IP
Convention Jan. 23-30, 2013 in Bangalore, India on The Comparative
Benefits of the ITC vs. District Courts in Patent Infringement
Actions.
New York partners Bruce Baber and Katie McCarthy to speak at
PLI’s Annual “IP Enforcement and Litigation” seminar in New York
and webinar on Feb. 1, 2013.
