While the Federal Circuit's direct assault on the applicability and scope of the doctrine of equivalents may have been set back by the Supreme Court in Festo Corp. v.
The Dedication Rule's Effect on Business Strategy
While the Federal Circuit's direct assault on the applicability and scope of the doctrine of equivalents may have been set back by the Supreme Court in <i>Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.,</i> 535 U.S. 722 (2002), the so-called Dedication Rule continues to limit the scope of equivalents under some circumstances. This controversial rule deems any subject matter that is disclosed in the specification, but falls outside the literal scope of the claims, to be dedicated to the public. This judicially created doctrine effectively denies patent protection, even under the doctrine of equivalents, to the subject matter that is disclosed, but left unclaimed, in the patent. This rule has been criticized both from legal and practical perspectives, and continued adherence to this rule could significantly impact the business policies and prosecution decisions of many patentees.
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