Patent Infringement Amidst Rapidly Evolving Technologies: New Equivalents, the Doctrine of Equivalents and the Reverse Doctrine of Equivalents

Consider the following: A company invests millions of dollars into a research and development project.The expenditure creates no guarantee that a marketable technology will result to recoup the vast investment.Fortunately, the investment does in fact yield a novel invention.1 In fact, the invention is such an advance that it is considered a "pioneer."To prevent others from exploiting the fruits of this investment, patent protection is sought: a patent application is promptly filed with the Patent Office. 2 Acknowledging the pioneering nature of the invention, the Patent Office proceeds to issue a patent with broad claims 3 which ostensibly offer wide proprietary protection for the technology.The invention immediately becomes a resounding commercial success.Anxious to exploit the market created by the new technology, a second company introduces a competing product.The originating company, fortified by its patent, counters in court by establishing that the claims of its patent clearly cover the competitor's product.The court acknowledges this clearly established case; however, it ultimately rules that there is no infringement.'Its holding is not based on the patent statutes, rather, it is grounded in a judicially created doctrine.The court, acting outside the patent statutes, has nullified the originating company's vast investment.Judicial precedent makes the foregoing hypothetical a reality.This peculiar and seemingly unjust situation is especially plausible in rapidly evolving technologies such as electronics 5 or biotechnol-1.The invention may be in the form of a machine, manufacture, composition of matter or processthe categories for a patentable invention.35 U.S.C. § 101 (1989).2. The United States Patent and Trademark Office is a branch of the Department of Commerce charged with administration of the Patent Laws, 35 U.S.C. § § 1 et seq.(1989) and the Trademark Laws, 15 U.S.C. § § 1051 et seq.(1989). See infra p. 82.4. See infra p. 82. 5. "Electronics is the science and technology of the passage of charged particles in a gas, in a vacuum, or in a semiconductor."J. MILLMAN, MICROELECTRONICS DIGITAL AND ANALOG CIRCurrs AND SYSTEM xvii (1979).At a practical level, electronics includes the familiar disciplines of computers and communications.These disciplines may be placed under the rubric of "information manipulation."Information manipulation may be in the 1990]