Parallels between anticipation (102) and obviousness (103) versus literal and equivalence infringement (271(a))

 

How close are the inventions? Issue is whether the claimed invention is unpatentable (before USPTO) or invalid (if asserted as basis for claimant’s rights in litigation) Issue is whether the defendant is infringing on a valid patent
Identical Prior art and applied-for invention are identical in all elements: 102 anticipation

Result: USPTO should deny patent to applied-for invention; if issue arises as a defense in litigation, then court should invalidate the claimant’s patent

Defendant is making, using, selling, etc. something identical in all elements to claimed invention: 271(a) literal infringement

Result: literal infringement

Close but not identical Prior art and applied-for invention have minor differences that are obvious to PHOSITA in light of pertinent prior art: 103 obviousness

Result: USPTO should deny patent to applied-for invention; if issue arises as a defense in litigation, then court should invalidate the claimant’s patent

 

Defendant is making, using, selling, etc. something that is equivalent to claimed invention: 271(a) infringement through doctrine of equivalents (DOE)

Result: infringement through DOE

Posted June 20, 2017