ORDER
PAULINE NEWMAN, Circuit Judge.
The parties and the amicus American Intellectual Property Law Association have raised several points in connection with Texas Instruments’ petition for rehearing. We deny this petition, affirming the prior decision1 in all respects; we write to discuss the following points.
The “Pioneer” Issue
Texas Instruments (“TI”) again asserts that because its Patent No. 3,819,921 describes a “pioneer” invention the claims should be given an enhanced breadth of interpretation, such that the extensive technological changes that have occurred since this invention was made should be deemed not only functional equivalents but also structural equivalents in terms of 35 U.S.C. § 112 116. The International Trade Commission counters, as before, that the '921 patent is not of “pioneer” caliber. The amicus expresses concern about the scope of patent protection in “fast-moving” areas of technology, without, however, giving amical advice on this important policy issue.2
The Supreme Court in Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 562, 18 S.Ct. 707, 718, 42 L.Ed. 1136 (1898), characterized a pioneering invention as “a distinct step in the progress of the art, distinguished from a mere improvement or perfection of what had gone before”. Courts early recognized that patented inventions vary in their technological or industrial significance. Indeed, inventions vary as greatly as human imagination permits.
There is not a discontinuous transition from “mere improvement” to “pioneer”. History shows that the rules of law governing infringement determinations are amenable to consistent application despite the variety of contexts that arise. The judicially “liberal” view of both claim interpretation and equivalency accorded a “pioneer” invention, see Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 9 S.Ct. 299, 32 L.Ed. 715 (1889), is not a manifestation of a different legal standard based on an abstract legal concept denominated “pioneer”. Rather, the “liberal” view flows directly from the relative sparseness of pri- or art in nascent fields of technology.
In the case of the claimed “pocket-size” calculator, we do not share the Commission's denigration of TI’s contribution. However, even its “pioneer” status does not change the way infringement is determined. The patentee’s disclosure, the prosecution history, and the prior art still provide the background against which the scope of claims is determined. As discussed in our prior opinion and further explained below, the claims fail to encompass the accused devices.
Literal Infringement
Our prior opinion construed the claims pursuant to 35 U.S.C. § 112 1t 6, since all the elements of the claims are in means-plus-function form.3 The Commission had found that in the accused calculators, though all of the functions of the claimed elements were performed, none was performed by the structures described in the ’921 specification or by equivalents of [1371]*1371those structures.4 We affirmed, on modified reasoning.
TI’s petition misstates this court’s holding. The court did not hold that “every claim element found corresponding equivalent structure in the accused devices”. Rather, the court held that, though every function of the claimed combination was performed in the accused devices, the structures performing those functions were not equivalents of the structures disclosed in the patent.
The court reviewed the Commission’s findings of non-equivalency of the corresponding structural elements by viewing each element in the context of the total combination of structures in the accused device. The functions of input, electronics, and display, viewed solely as functions, were in the calculator prior art; the patent-ability of the combination depended on the totality of changes in the structures by which the functions were performed. (Indeed the separate structures described in the ’921 patent are individually the subject of patents.) It is the totality of means that achieved the claimed pocket-size calculator, as it is the totality of modified means that constitutes the accused calculators. Thus, the equivalency of each changed means is evaluated in the context of the accused device as a whole.
The Commission had analyzed each corresponding structure in the accused devices as if such structure were the only difference between the accused device and the claimed device. That is, each function/means clause was analyzed as if it were a separate patented invention, viewed in isolation. It is a distortion of the accused devices to evaluate the equivalency of each changed means as if all the other functions are performed by the original means described in the ’921 specification. do so is to evaluate some theoretical device made up of all but one of the pat-entee’s disclosed structures plus one new structure: a device that does not exist. As we stated in our main opinion, “that is not the situation before us.” 805 F.2d at 1569, 231 USPQ at 840. In light of this flawed methodology, we observed that there may not be substantial evidence to support the Commission’s findings of nón-equivalence. However, we concluded that under the correct legal analysis, substantial evidence did support the Commission’s determination.
Each function in a claim is part of a combination, not a separate invention. In cases such as the one before us in which all functions are performed but multiple means are changed, the equivalency of each changed means is appropriately determined in light of the other structural changes in the combination. As in all cases involving assertions of equivalency, wherein the patentee seeks to apply its claims to structures not disclosed by the patentee, the court is required to exercise judgment. In cases of complex inventions, the judgment must take account of situations; where the components of the claimed com-! bination are of varying importance or are changed to varying degrees. This is done \ by viewing the components in combination. |
The Reverse Doctrine of Equivalents
The amicus suggests that the court could apply the so-called “reverse doctrine of equivalents”. The “reverse doctrine” is explained in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608-09, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950) as the “wholesome realism ... where a device is so far changed in principle from the patented article ... but nevertheless falls within the literal words of the claim ... the doctrine may be used to restrict the claim”, thereby avoiding infringement. Indeed, it might better be called a doctrine of non-eqüivá-lence.
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ORDER
PAULINE NEWMAN, Circuit Judge.
The parties and the amicus American Intellectual Property Law Association have raised several points in connection with Texas Instruments’ petition for rehearing. We deny this petition, affirming the prior decision1 in all respects; we write to discuss the following points.
The “Pioneer” Issue
Texas Instruments (“TI”) again asserts that because its Patent No. 3,819,921 describes a “pioneer” invention the claims should be given an enhanced breadth of interpretation, such that the extensive technological changes that have occurred since this invention was made should be deemed not only functional equivalents but also structural equivalents in terms of 35 U.S.C. § 112 116. The International Trade Commission counters, as before, that the '921 patent is not of “pioneer” caliber. The amicus expresses concern about the scope of patent protection in “fast-moving” areas of technology, without, however, giving amical advice on this important policy issue.2
The Supreme Court in Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 562, 18 S.Ct. 707, 718, 42 L.Ed. 1136 (1898), characterized a pioneering invention as “a distinct step in the progress of the art, distinguished from a mere improvement or perfection of what had gone before”. Courts early recognized that patented inventions vary in their technological or industrial significance. Indeed, inventions vary as greatly as human imagination permits.
There is not a discontinuous transition from “mere improvement” to “pioneer”. History shows that the rules of law governing infringement determinations are amenable to consistent application despite the variety of contexts that arise. The judicially “liberal” view of both claim interpretation and equivalency accorded a “pioneer” invention, see Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 9 S.Ct. 299, 32 L.Ed. 715 (1889), is not a manifestation of a different legal standard based on an abstract legal concept denominated “pioneer”. Rather, the “liberal” view flows directly from the relative sparseness of pri- or art in nascent fields of technology.
In the case of the claimed “pocket-size” calculator, we do not share the Commission's denigration of TI’s contribution. However, even its “pioneer” status does not change the way infringement is determined. The patentee’s disclosure, the prosecution history, and the prior art still provide the background against which the scope of claims is determined. As discussed in our prior opinion and further explained below, the claims fail to encompass the accused devices.
Literal Infringement
Our prior opinion construed the claims pursuant to 35 U.S.C. § 112 1t 6, since all the elements of the claims are in means-plus-function form.3 The Commission had found that in the accused calculators, though all of the functions of the claimed elements were performed, none was performed by the structures described in the ’921 specification or by equivalents of [1371]*1371those structures.4 We affirmed, on modified reasoning.
TI’s petition misstates this court’s holding. The court did not hold that “every claim element found corresponding equivalent structure in the accused devices”. Rather, the court held that, though every function of the claimed combination was performed in the accused devices, the structures performing those functions were not equivalents of the structures disclosed in the patent.
The court reviewed the Commission’s findings of non-equivalency of the corresponding structural elements by viewing each element in the context of the total combination of structures in the accused device. The functions of input, electronics, and display, viewed solely as functions, were in the calculator prior art; the patent-ability of the combination depended on the totality of changes in the structures by which the functions were performed. (Indeed the separate structures described in the ’921 patent are individually the subject of patents.) It is the totality of means that achieved the claimed pocket-size calculator, as it is the totality of modified means that constitutes the accused calculators. Thus, the equivalency of each changed means is evaluated in the context of the accused device as a whole.
The Commission had analyzed each corresponding structure in the accused devices as if such structure were the only difference between the accused device and the claimed device. That is, each function/means clause was analyzed as if it were a separate patented invention, viewed in isolation. It is a distortion of the accused devices to evaluate the equivalency of each changed means as if all the other functions are performed by the original means described in the ’921 specification. do so is to evaluate some theoretical device made up of all but one of the pat-entee’s disclosed structures plus one new structure: a device that does not exist. As we stated in our main opinion, “that is not the situation before us.” 805 F.2d at 1569, 231 USPQ at 840. In light of this flawed methodology, we observed that there may not be substantial evidence to support the Commission’s findings of nón-equivalence. However, we concluded that under the correct legal analysis, substantial evidence did support the Commission’s determination.
Each function in a claim is part of a combination, not a separate invention. In cases such as the one before us in which all functions are performed but multiple means are changed, the equivalency of each changed means is appropriately determined in light of the other structural changes in the combination. As in all cases involving assertions of equivalency, wherein the patentee seeks to apply its claims to structures not disclosed by the patentee, the court is required to exercise judgment. In cases of complex inventions, the judgment must take account of situations; where the components of the claimed com-! bination are of varying importance or are changed to varying degrees. This is done \ by viewing the components in combination. |
The Reverse Doctrine of Equivalents
The amicus suggests that the court could apply the so-called “reverse doctrine of equivalents”. The “reverse doctrine” is explained in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608-09, 70 S.Ct. 854, 856, 94 L.Ed. 1097, 85 USPQ 328, 330 (1950) as the “wholesome realism ... where a device is so far changed in principle from the patented article ... but nevertheless falls within the literal words of the claim ... the doctrine may be used to restrict the claim”, thereby avoiding infringement. Indeed, it might better be called a doctrine of non-eqüivá-lence. Its invocation requires both that (1) there must be apparent literal infringement of the words of the claims; and (2) the accused device must be sufficiently different from that which is patented that despite the apparent literal infringement, the claims are interpreted to negate infringement. See, e.g., SRI Int’l v. Matsushita Electric Corp., 775 F.2d 1107,1122-23, 227 USPQ 577, 587 (Fed.Cir.1985); Leesona Corp. v. United States, 530 F.2d 896, 208 Cta 871, 192 USPQ 672 (1976).
[1372]*1372The reverse doctrine of equivalents is invoked when claims are written more broadly than the disclosure warrants. The purpose of restricting the scope of such claims is not only to avoid a holding of infringement when a court deems it appropriate, but often is to preserve the validity of claims with respect to their original intended scope. See the discussion in Pigott, Equivalents in Reverse, 48 J.Pat.Off.Soc’y 291, 292 (1966). None of these aspects is here present. As we have discussed, literal infringement of means-plus-function claims requires both that the same function be performed and that the same or equivalent means be used. The reverse doctrine of equivalents comes into consideration only when literal infringement is apparent. Since the ’921 claims are not literally infringed, the reverse doctrine of equivalents does not apply.
Accordingly, IT IS ORDERED THAT: The petition is denied.
The suggestion for rehearing in banc will be considered.