In a recent decision on patent infringement under the doctrine of equivalents, the German Federal Court of Justice confirmed its case law that each limitation of the claim must be met in the accused device, either literally or equivalently. Specifically, the Court held that it was irrelevant whether the accused device as a whole produces an effect that is, in its totality, equivalent to an embodiment of the claim. Rather, it was decisive which effect each individual limitation of the claim contributes to the use of the invention and whether these exact effects are achieved literally or equivalently in the accused device.
The Court conceded that it may be sufficient for the finding of infringement by equivalents if a substitute means produces an outcome that is inferior to other possible embodiments of the invention. However, substitute means in the accused device can only be regarded as “equivalent” to the claim if such means correspond to individual limitations not literally satisfied.
For more information, please read our annotation on that decision published in GRUR-Prax 2021, 175 (German language).