Since I have done two, rather lengthy posts on the Fed. Cir. split decision in Siemens Med. Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, 637 F.3d 1269 (Fed. Cir. 2011) , reh’g den. 647 F.3d 1373 (2011), it deserves note that the Court delayed its vote on whether or not to grant cert., and asked the Solicitor General for a brief giving the Government’s position on the issue. This seems like an unusual amount of attention to be given to a fairly narrow issue regarding the doctrine of equivalents – when, if ever, can doe infringement be found when there is no literal infringement and the accused infringer has obtained a patent on the accused invention? At least this is the practical question that will be answered – put technically the question may relate to the burden of proof on the plaintiff to establish doe infringement – should it be higher if the accused infringer has obtained a patent? Remarkably, the Fed. Cir. decision denying rehearing en banc is only eight pages short, with the dissent by Dyk, Gajarsa and Prost. The opinion presents this intriguing question clearly and is well worth a read.
See my previous posts on Saint-Gobain v. Siemens.