Festo Corporation v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., A/K/A Smc Corporation, and Smc Pneumatics, Inc.

I join the majority opinion with respect to the disposition of Questions 1, 2, 4, and 5. However, I must dissent from the majority’s response to Question 3 because I believe it contradicts Supreme Court precedent and policy.

In Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 1054 (1997), the Supreme Court encouraged our court to “refine the formulation of the test for equivalence.” I am convinced, however, that the majority’s new “complete bar rule,” far from being merely such a refinement, contravenes consistent Supreme Court authority. Not only does…