Exclusion Confusion? A Defense of the Federal Circuit\u27s Specific Exclusion Jurisprudence

Specific exclusion has become a controversial limitation on the doctrine of equivalents, which is itself an essential and controversial area of patent law. The doctrine of equivalents allows a patentee to successfully claim infringement against devices that are outside of the literal reach of the language used by the patentee in her patent to describe what she claims as her invention. The Supreme Court has prescribed some of the outer limits of the doctrine of equivalents and articulated the underlying policy concerns that inform its analysis-noting that courts should balance protection of the patentee\u27s intellectual property with the public\u27s reasonable expectations of the bounds of the patent-but has entrusted most of the doctrine\u27s development to the Federal Circuit. Critics argue that the Federal Circuit has applied specific exclusion, which precludes the doctrine of equivalents from reaching subject matter that is specifically excluded by the language used in the patent to describe the invention, in a way that does not adhere to the Supreme Court\u27s guidance on the doctrine of equivalents. The critics assert that the Federal Circuit has unduly narrowed the doctrine of equivalents by applying specific exclusion too aggressively. This Note demonstrates that the critics\u27 extreme characterization of Federal Circuit specific exclusion case law is unwarranted. The Federal Circuit has consistently and conscientiously applied specific exclusion, and their decisions conform to the Supreme Court\u27s guidance on the public notice function of patent claims. At the same time, the Federal Circuit has protected patentees by not allowing specific exclusion to reduce the doctrine of equivalents to another test for literal infringement