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Federal Circuit Orders En Banc Rehearing of Important Doctrine of Equivalents Issue

99-1076
January 25, 2001

Decision icon Decision, en banc

Last Month at the Federal Circuit - February 2001

In Johnson & Johnson Associates v. R.E. Service Co., No. 99-1076 (Fed. Cir. Jan. 24, 2001), the Federal Circuit ordered, sua sponte, that the case be heard en banc to determine when and under what circumstances a patentee can rely upon the DOE with respect to unclaimed subject matter disclosed in the specification. The Court ordered the en banc hearing after initial arguments before a three-judge panel on December 7, 1999.

The Court also ordered new briefs to be filed and permitted the filing of amicus briefs. The supplemental briefing also applies to the more narrow question of whether in this case the jury’s finding of infringement should be reversed because the patentee was foreclosed from asserting the DOE with respect to unclaimed subject matter disclosed in the specification.