Chief Judge Stark this week granted a motion of non-infringement under the doctrine of equivalents due to the slim DOE analysis relied on by the patentee's expert.
Interestingly, the expert had offered some testimony framed in terms of the usual function-way-result DOE test:
[T]he Accused Products perform substantially the same function (producing densitometry/densitometric models for use in assessing bone density), in substantially the same way (determining linear attenuation coefficients of an object in several tomographic scans and combining this information using the Feldkamp algorithm to determine the grayscale values of voxels and the corresponding HU units thereof of a 3D CBCT volume of the object), to achieve substantially the same result (3D volumes that include information for depicting quantitative differences in bone density).
The Court pointed out, however, that this analysis was not done on a limitation-by-limitation basis, and granted summary judgment as to DOE:
Plaintiff's DOE theory . . . is just the same literal infringement theory repackaged as DOE, without particularized linking evidence on a limitation-by-limitation basis. It is, then, insufficient and summary judgment is warranted.
In the same opinion, the Court denied five other SJ and Daubert motions, for the usual reasons.
For more reading, I saw that Greg Williams also posted about this decision over on the Delaware Intellectual Property Litigation Blog.
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