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Expert Analysis

A Primer On Amendment-Based Prosecution History Estoppel

By Mark Eberhard (February 20, 2019, 5:27 PM EST) -- This is a primer on an important aspect of patent litigation — the application of amendment-based prosecution history estoppel as a limitation on the doctrine of equivalents. Under the doctrine of equivalents, an accused product or process that does not literally include every limitation of an asserted patent claim can still infringe the claim if it includes an equivalent of the missing limitation.[1] Amendment-based prosecution history estoppel is one of two forms of prosecution history estoppel that function to limit the doctrine of equivalents by preventing a patentee from capturing through equivalents subject matter surrendered during prosecution.[2]...

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