Hilton Davis Chemical Co. v. Warner-Jenkinson Company, Inc.

NIES, Circuit Judge,

dissenting, with whom ARCHER, Chief Judge, joins Part IV, Sections C2-4, D, and E.

I dissent. I concur in Judge Plager’s dissent on the issue of infringement to the extent of his eloquent statement of the problem. However, I conclude that the determination of infringement under the “Doctrine of Equivalents,” as articulated in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950) (Graver II), and prior Supreme Court precedent presents a series of questions of law, fact, and mixed law and fact. The meaning of the words…