Chapter §16.01 Introduction

• Jurisdiction: United States

§16.01 Introduction

Well-established case law provides that the analysis for patent infringement involves two steps.¹ The first step is interpretation of the claims of the patent in suit, as detailed in Chapter 15 of this treatise.

The second step of the patent infringement analysis is the topic of this chapter. Step two involves comparison; that is, it requires that each limitation of the properly interpreted claim be met in the accused device, either literally or equivalently.

Although referred to in some earlier decisions as the "all-elements" rule, this doctrine is more properly termed the "all-limitations" rule.² Infringement cannot be determined by comparing the claimed and accused devices as a whole; the analysis must be performed on a claim limitation-by-claim limitation level.³

Each limitation of a patent claim is material. If even a single claim limitation is not met in the accused device, there cannot be infringement. For example, if a patent claims "a widget comprising parts A, B, C, D, and E," and an accused widget incorporates parts A, B, C, and E, but lacks a part D (or an equivalent of part D), then the accused widget cannot infringe.

The all-limitations rule incorporates the two basic types of infringement recognized in U.S. patent law: (1) literal infringement and (2) infringement under the judicially created doctrine of equivalents. Each is discussed below.

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Notes:

^[1] See, e.g., Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc) ("First, the court determines the scope and meaning of the patent claims asserted. . . . [Second,] the properly construed claims are compared to the allegedly infringing device.") (citations omitted); Caterpillar Tractor Co. v. Berco, S.p.A., 714 F.3d 1110, 1114 (Fed. Cir. 1983) (citing Autogiro Co. of America v. United States, 384 F.2d 391, 401 (Ct. Cl. 1967)).

^[2] Patent attorneys and Federal Circuit judges sometimes use the words "element" and "limitation" interchangeably. The preferred usage is to speak of limitations of a patent claim and elements of an accused device. See Dawn Equip. Co. v. Kentucky Farms Inc., 140 F.3d 1009, 1014 n.1 (Fed. Cir. 1998); Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528, 1533 n.9 (Fed. Cir. 1987).

^[3] See...