Icon Health loses at CAFC

The CAFC in ICON Health v. Octane Fitness cites a number of LBE's favorite cases, including

-->Wilson Sporting Goods Co. v. David Geoffrey & Assocs., 904 F.2d 677, 684 (Fed. Cir. 1990) (“[A] patentee should not be able to obtain, under the doctrine of equivalents, coverage which he could not lawfully have obtained from the PTO by literal claims.”), overruled in part on other grounds by Cardinal Chem. Co. v. Morton Intern., Inc., 508 U.S. 83 (1993).


-->See Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1311 (Fed. Cir. 1998) (“[A] finding of non-equivalence for § 112, ¶ 6, purposes should preclude a contrary finding under the doctrine of equivalents.”).

And, of using the word "cursory"-->

In circumstances such as these, where there is evidence that prior art would be included in an asserted range of equivalents, the patentee must show that its proposed equivalent does not encompass the prior art. Streamfeeder, LLC v. Sure-Feed Sys., Inc., 175 F.3d 974, 983 (Fed. Cir. 1999). Here, Octane presented evidence that ICON’s asserted range of equivalents would encompass the Maresh patent, a conclusion with which the district court agreed. Summary Judgment Op., 2011 WL 2457914, at *12. ICON, in response, argued that the Maresh patent does not anticipate the ’710 patent because it is missing the “means for selectively varying” limita- tion. However, even a cursory read of the Maresh patent shows a discussion of altering the elliptical path by changing the length of the linkage system parts.

**LARRY R. LAYCOCK, Workman Nydegger, of Salt Lake City, Utah, argued for plaintiff-appellant, Icon Health