Talk:Warner-Jenkinson v. Hilton Davis Respondent Brief

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Courtney

Petitioner's deliberate use of the patented process to sell enormous quantities of dyes made by the infringing process continued even after learning of Respondent's patent and being warned of infringement. Petitioner made no attempt to design around Respondent's patent until a permanent injunction was entered, after which it immediately modified its process in an attempt to avoid infringement. See Exhibit A to Brief of Appellee in the court below; C.A. Jt. App. 895-900, 912-13.

Petitioner, by challenging the doctrine of equivalents itself, seeks to destroy one of the most important bulwarks underlying our country's patented technology. To affirm the decision below assures the continuance of this necessary rule of law. To change the law returns our patent system to the dark ages where anyone can “practice a fraud on a patent” simply by making “unimportant and insubstantial changes”-an anathema to this Court's wisdom of Graver Tank.

I. THE DOCTRINE OF EQUIVALENTS WAS NOT ABOLISHED BY AND IS FULLY CONSISTENT WITH THE 1952 PATENT ACT

The principal purpose of the 1952 Patent Act was “the codification of title 35, United States Code, and involves simplification and clarification of language and arrangement.” 1952 U.S.C.C.A.N. at 2397. Notably, the Act and its legislative history make no express change in the then-existing law of the doctrine of equivalents.

II. THE DOCTRINE OF EQUIVALENTS SHOULD BE BROADLY APPLIED AND AVAILABLE TO PATENTEES IN EVERY PATENT INFRINGEMENT ACTION