Vitiating the Doctrine of Claim Vitiation

I do a fair amount of opinion work as part of my law practice; so, I’m always interested in cases where the doctrine of claim vitiation is a topic during oral argument. The doctrine of claim vitiation has yielded some interesting comments from the bench in past cases.  See these posts for past comments by Chief Judge Rader. [Link], [Link], and  [Link].

Judge Moore had some frank words about the doctrine of claim vitiation during the oral argument of Source Vagabond Systems Ltd. v. Hydrapak, Inc., 2012-1408 (Fed. Cir. 2013)(Rule 36 Judgment):  [Listen] and [Listen].  In the second sound bite, she notes that she would be happy to “scratch it out of existence.”

You can listen to the entire oral argument from Source Vagabond here: [Listen].

Personally, I find the doctrine of claim vitiation to be a useful tool when there clearly  is no equivalent.  However, I understand the court’s frustration with how to apply the doctrine.

Here is one more post on the related issue of the specific exclusion principle: [Is lyrica a narcotic].

Two recently decided Federal Circuit cases that deal with claim vitiation are:

Deere and Co. v. Bush Hog, LLC et al.,  __ F.3d __ , Nos. 2011-1629, -1630, -1631 (Fed. Cir. 2012)(Chief Judge Rader writing for the court) [Link]; and

Brilliant Instruments, Inc. v. Guidetech, LLC, __ F.3d __, No. 2012-1013 (Fed. Cir. 2013)(Judge Moore writing for the court; Judge Dyk in dissent) [Link].

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