Whether you believe patents promote innovation and progress or stifle it, the fact that you are reading this piece indicates that you recognise their significance. You may agree or disagree with the patent system, as do many smart academics and practitioners, but that is not why you are here. You want to know how to manage the system in order to enhance your company’s development while minimising liabilities.
Under DOE, there are two standards for detecting infringement: (1) Function-Manner-Outcome test – if the accused product performs the same function in the same way to get the same result. (2) Insubstantial Differences test – if the accused product differs significantly from what is patented. Courts use either approach depending on the facts of the case and the nature of the infringing goods. For example, the Function-Way-Result test is recommended for mechanical patents, but the Insubstantial Differences Test is chosen for non-mechanical inventions such as chemical patents.
Consider the following situation to better understand the applicability of DOE:
A non-spring system that contains a vacuum pump, on the other hand, may not infringe on the Stapler Patent. To maintain a steady supply of pins, the vacuum pump employs a differential in pressure (method) to retain stapler pins in position (function) and urge them forward when the quantity of pins decreases (function) (result). It does not work in the same manner as the spring system since the spring system uses elastic potential energy rather than pressure difference. In this scenario, your Cool New Stapler® may not infringe the stated claim since it not only lacks a spring-system, but the system it employs, i.e., the vacuum pump, is not analogous to the spring-system. Even while your Cool New Stapler® performs the same function and achieves the same result as the patented stapler, it does not perform the function and accomplish the result in the same manner.
To summarise, even if your product is not identical to a patented product and/or lacks an aspect of a claimed claim, don’t rule out the potential that your product is nonetheless comparable to the patented claim under a Doctrine of Equivalents analysis.