The below,from the groklaw.net comment section, might be of interest re: prior art.
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Authored by: nsomos on Tuesday, September 04 2012 @ 09:57 PM EDT
I am guessing the foreman was confused by the last paragraph
of page 40 of the instructions.
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In deciding whether any difference between a claim requirement and the
product or method is not substantial, you may consider whether,
at the time of the alleged infringement, persons of ordinary skill
in the field would have known of the interchangeability of the part
or software instructions with the claimed requirement.
The known interchangeability between the claim requirement and
the part or software instructions of the product or method is
not necessary to find infringement under the doctrine of equivalents.
However, known interchangeability may support a conclusion that
the difference between the part or software instructions and
the claim requirement is not substantial. The fact that a part
or software instructions of the product or method performs the same
function as the claim requirement is not, by itself, sufficient
to show known interchangeability.
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It seems that the foreman at least has the ideas
given here backwards. I suspect that he quickly
skimmed and basically cherry-picked those sentences
and paragraphs that allowed him to come to the
conclusion he already had decided he wanted to come to.
The interchangeability that is mentioned here
only applies to infringement, and not to prior art
which is invalidating.
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Authored by: nsomos on Tuesday, September 04 2012 @ 09:57 PM EDT I am guessing the foreman was confused by the last paragraph of page 40 of the instructions.
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In deciding whether any difference between a claim requirement and the product or method is not substantial, you may consider whether, at the time of the alleged infringement, persons of ordinary skill in the field would have known of the interchangeability of the part or software instructions with the claimed requirement. The known interchangeability between the claim requirement and the part or software instructions of the product or method is not necessary to find infringement under the doctrine of equivalents. However, known interchangeability may support a conclusion that the difference between the part or software instructions and the claim requirement is not substantial. The fact that a part or software instructions of the product or method performs the same function as the claim requirement is not, by itself, sufficient to show known interchangeability.
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It seems that the foreman at least has the ideas given here backwards. I suspect that he quickly skimmed and basically cherry-picked those sentences and paragraphs that allowed him to come to the conclusion he already had decided he wanted to come to.
The interchangeability that is mentioned here only applies to infringement, and not to prior art which is invalidating.