AquaTex garments.

AquaTex accused Techniche Solutions of infringing a patent on "evaporative cooling garments."  The Federal Circuit today upheld a summary judgment against AquaTex, concluding as a matter of law that AquaTex hadn’t raised a fact issue as to infringement under the doctrine of equivalents.  AquaTex Industries, Inc. v. Techniche Solutions , No. 2006-1407 (Fed. Cir. Feb. 27, 2007).

Who cares?  Certainly the parties do.  Should you too?

If you handle patent infringement cases, yes.  The decision may help you avoid pre-trial disaster.  Allow Blawgletter a moment to explain.

Technice moved for summary judgment of non-infringement.  Crafty AquaTex responded by submitting the deposition testimony of Techniche’s CEO.  Probably the CEO said things that a jury would find compelling, possibly damning.  But apparently AquaTex didn’t reckon with the special proof requirements that apply even on summary judgment to a doctrine of equivalents infringement claim.

As the court pointed out, the equivalents doctrine requires "particularized testimony of a person of ordinary skill in the art, typically a qualified expert, who (on a limitation-by-limitation basis) describes the claim limitations and establishes that those skilled in the art would recognize the equivalents."  Slip op. at 14 (footnote omitted) (emphasis added).  The CEO’s testimony "only explained how the defendant’s product operated" and did not address the equivalence of the Techniche product to the "patented method on a limitation-by-limitation basis" or the insubstantiality of the differences between them.  Id.

Lesson:  To beat a summary judgment motion under the doctrine of equivalents, you should get an expert who compares the bad guy’s product with the patent and explains, with respect to each claim limitation, why any differences don’t matter.  Good luck!

Barry Barnett

Feedicon14x14_91 Blawgletter has no equivalent.  And, yet, you can subscribe free.