Johnson & Johnston Associates Inc. v. R.E. Service Co., Inc. And Mark Frater

RADER, Circuit Judge, with whom MAYER, Chief Judge, joins,

concurring.

While endorsing the results and reasoning of the court, I would offer an alternative reasoning. This alternative would also help reconcile the preeminent notice function of patent claims with the protective function of the doctrine of equivalents. This reconciling principle is simple: the doctrine of equivalents does not capture subject matter that the patent drafter reasonably could have foreseen during the application process and included in the claims. This principle enhances the notice function of claims by making them…