Conventional wisdom has anointed the recent Supreme Court ruling in the case of Festo v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., as the most important decision impacting patent law in the last decade. If the justices decide to uphold the lower court's decision, warned Festo's famous lawyer (and one-time Supreme Court nominee) Robert Bork, "they will have undone the patent system." The overwrought sentiment continued through oral argument. The existing court ruling had "drastically undermined" the patent system, Bork told the court last January. Millions of patents had been rendered "virtually worthless."
At stake in Festo was the "doctrine of equivalents," which extends patents beyond their literal terms to cover subject matter they don't expressly mention. The U.S. Court of Appeals for the Federal Circuit had sharply limited the doctrine. Bork wanted the doctrine of equivalents reinstated. On 28 May 2002, the Supreme Court essentially split the difference, according to patent expert Steven J. Frank, who punctures the bloviating Bork and his cohorts in the July issue of IEEE Spectrum. Frank argues that notwithstanding huffing and puffing, the Supreme Court Festo decision matters precious little. Rest easy--the patent system is safe. Festo in particular, and the doctrine of equivalents in general, just don't have that much impact. Frank explains exactly why.
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