Intel Corporation v. U.S. International Trade Commission, and Atmel Corporation, General Instrument Corporation and Microchip Technology Incorporated, Hyundai Electronics Industries Co., Ltd., and Hyundai Electronics America, Inc. And Seeq Technology, Inc., Intervenors-Appellees. Atmel Corporation v. U.S. International Trade Commission, and Intel Corporation and Seeq Technology, Inc., Intervenors-Appellees. General Instrument Corporation and Microchip Technology Incorporated v. U.S. International Trade Commission, and Intel Corporation and Seeq Technology, Inc., Intervenors-Appellees

Intel Corporation (Intel), Atmel Corporation (Atmel), and General Instrument Corporation and Microchip Technology Incorporated (collectively GI/M) have each filed an appeal from certain aspects1 of the Opinion (Decision) and Order, issued March 16, 1989, by the United States International Trade Commission (Commission), in Certain Erasable Programmable Read Only Memories, Components Thereof, Products Containing Such Memories, And Processes For Making Such Memories, 12 ITRD 1088 (1989). The Order prohibited Atmel and GI/M (and other parties in that proceeding) from importing into the United States certain Erasable Programmable Read-Only Memories (hereinafter EPROMs)2 found to infringe one or more of Intel's United States patents.3 We affirm-in-part, reverse-in-part, and vacate-in-part.

* An investigation was begun by the Commission in September 1987, under section 337 of the Tariff Act of 1930, codified as amended at 19 U.S.C. § 1337 (1988), in response to a complaint filed by Intel alleging unfair acts and unfair methods of competition in the importation and sale of certain EPROMs by seven respondents, including Atmel and GI/M. See 19 U.S.C. § 1337(a)(1) (1988).

In the complaint, Intel alleged that the respondents violated section 337 by importing EPROMs which infringed six Intel U.S. product patents and two Intel U.S. process patents (one of which was withdrawn from consideration).4 Section 337 permits the Commission to exclude from the United States any goods that violate the provisions of that section. 19 U.S.C. § 1337(e)(1). The Commission may also order any party violating section 337 "to cease and desist from engaging in the unfair methods or acts involved." 19 U.S.C. § 1337(f)(1).

The respondents challenged the validity and enforceability of the asserted patents, as well as Intel's allegations of infringement. The investigation was assigned to an administrative law judge (ALJ) who produced a 350-page initial determination (ID) detailing the facts and resolving the numerous issues presented by the parties. On review of the ID, the Commission affirmed many of the ALJ's determinations, ordered review of certain portions of the ID, and requested written submissions on those and other issues. In another prodigious effort, the Commission made 143 pages of additional findings and conclusions. The following table summarizes how the Commission disposed of the validity and infringement issues for each of the Intel patents:5

On the basis of its Decision, the Commission entered a limited exclusion order preventing the importation of, inter alia, the EPROMs manufactured abroad by or for Atmel (64K, 256K, 51 Series, and 1024K), and GI/M (256K and 51 Series). Order at 7-8. In addition, the Commission ordered Atmel and GI/M to cease and desist from "importing, selling for importation, assembling, testing, performing manufacturing steps with respect to, using, marketing, distributing, offering for sale, or selling" EPROMs which were determined to be infringing. Decision at 5.

The issues before us on appeal and cross-appeal include: (1) Atmel's claim that its EPROMs are noninfringing because they are manufactured by Sanyo Electric Co., Ltd. and Tokyo Sanyo Electric Co., Ltd. (collectively Sanyo) under a broad cross-licensing agreement between Sanyo and Intel; (2) Atmel's claim that the '084 patent is invalid; (3) Atmel's and GI/M's challenge to the Commission's finding that their "old" 51 Series EPROM's infringe the '084 patent; (4) Atmel's and GI/M's claim that Intel's '050 patent is invalid and not infringed; (5) GI/M's challenge to the validity of claim 2 of the '394 patent; (6) Intel's argument that GI/M cannot challenge the '394 patent's validity because of the doctrine of assignor estoppel; and (7) Atmel's and GI/M's claim that their EPROMs do not infringe claim 2 of the '394 patent.8II

A. Atmel argues that its EPROMs did not infringe any of the Intel patents because the EPROMs were made by Sanyo under Sanyo's cross-licensing agreement with Intel (the Intel/Sanyo agreement). The agreement grants Sanyo the right to make, use and sell "any Sanyo ... products" under Intel's patents. Intel contends that Sanyo is not licensed to manufacture another corporation's goods, i.e., under industry terminology Sanyo may not act as a "foundry." Because Intel licensed only Sanyo products,9 Intel argues that the cross-license did not authorize Sanyo to manufacture Atmel-designed EPROMs for Atmel, for that would be the manufacture of "Atmel" products rather than "Sanyo" products. The ALJ framed the license defense issue as "whether Sanyo was licensed by Intel to make an Atmel EPROM, using Atmel's design, putting Atmel's name and product designation on the EPROM, and selling the EPROM to Atmel for resale as an Atmel product." ID at 25.

If the Intel/Sanyo agreement permits Sanyo to act as a foundry for another company for products covered by the Intel patents, the purchaser of those licensed products from Sanyo would be free to use and/or resell the products. Such further use and sale is beyond the reach of the patent statutes. See United States v. Univis Lens Co., 316 U.S. 241, 250-52, 62 S.Ct. 1088, 1093-94, 86 L.Ed. 1408 (1942) (the first vending of any article manufactured under a patent puts the article beyond the reach of the patent).

Section 14.5 of the Intel/Sanyo agreement states that "[t]his Agreement shall be governed by and subject to and construed according to the laws of the State of California." Under California law, the interpretation of a contract is a question of law, to the extent that it is based on the language of the agreement. Clark v. Rancho Santa Fe Ass'n, 216 Cal.App.3d 606, 618, 265 Cal.Rptr. 41, 47 (1989); see also Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 736 (9th Cir.1988). When interpreting a contract, we must, where possible, give meaning and purpose to every term used in the contract. See, e.g., Beck v. American Health Group Int'l, Inc., 211 Cal.App.3d 1555, 1566, 260 Cal.Rptr. 237, 244 (1989) (citing Jensen v. Traders & General Ins. Co., 52 Cal.2d 786, 345 P.2d 1 (1959)); see also Fortec Constructors v. United States, 760 F.2d 1288, 1292 (Fed.Cir.1985). In resolving what the parties meant by limiting the license only to Sanyo products, we try to ascertain and give effect to the intent of the parties at the time the contract was signed. See Moss Dev. Co. v. Geary, 41 Cal.App.3d 1, 9, 115 Cal.Rptr. 736, 741 (1974); Cal.Civ.Code. §§ 1636, 1641, 1652-53 (1985); see also Ralden Partnership v. United States, 891 F.2d 1575, 1577 (Fed.Cir.1989).

In determining that the Intel/Sanyo agreement did not cover foundry rights, the ALJ reasoned:

It is reasonable to assume that the parties meant to exclude parts that one party made as foundry for another company, using the other company's design, parts intended to be sold as the other company's parts under the other company's name, and not just used as Sanyo components in a larger product made by another company.

The interpretation of the licensing agreement as proposed by Atmel would mean that any company that was unable to obtain a license from Intel but still wanted to make its own parts practicing Intel patents could employ Sanyo as a foundry and circumvent Intel's patents. Without something to explain why the parties would have intended such a result, the agreement will not be given this strained construction.

ID at 28 (citation omitted, emphasis added). By not reviewing the ALJ's decision on this issue, the Commission adopted that decision. Commission Rule 210.53(h), 53 Fed.Reg. 33,070 (1988) (codified at 19 C.F.R. § 210.53(h) (1990)).

While there is no indication in the agreement as to what the parties meant by the "Sanyo" limitation, the use of that language in paragraph 3.5 clearly evinces that the parties intended to restrict the grant in some manner.

Atmel argues that the "Sanyo" limitation in paragraph 3.5 was only intended to prevent the transfer of "have made" rights to Sanyo, i.e., to prevent Sanyo from hiring another company to manufacture licensed products for Sanyo. Atmel urges that its interpretation of paragraph 3.5 is supported by a letter containing a summary of the amendments prepared by a member of Intel's negotiating team in connection with a later extension of the Intel/Sanyo agreement. This letter describes the amended agreement as being unchanged insofar as it is a "[g]eneral patent cross license without 'have made' rights."10 In this connection, Atmel contends that paragraph 3.8 cannot be read as excluding "have made" rights. Further, it argues that if any portion of the contract excludes "have made" rights, as suggested in the letter, it must be the "Sanyo" limitation in paragraph 3.5. Finally, because the letter expressly states that the agreement excludes "have made" rights and fails to say that foundry rights are similarly excluded, Atmel draws the conclusion that Intel believed its license to Sanyo included foundry rights.

Although the ALJ did not specifically mention the letter,11 she did fully consider and reject Atmel's arguments regarding the source of the "have made" exclusion. In referring to paragraph 3.8, the ALJ said that neither party intended to rely upon any implied license from Intel to Sanyo and that this provision "prevent[s] any implication of 'have made' rights under the license." ID at 24. Noting that there was no evidence indicating that Intel knew Sanyo might act as a foundry for other unlicensed companies, that Sanyo's license in paragraph 3.5 was world-wide and royalty-free, and that Intel would not receive any further consideration no matter how many companies went to Sanyo for parts that infringed Intel patents, the ALJ posed the hypothetical question: Could Intel have intended that any company in the world could get Sanyo to make its parts without having to get its own license from Intel on Intel's patents? The ALJ's answer was that, in the absence of evidence of any such intent on the part of the parties to the contract, this construction of the license agreement would not be adopted. The ALJ concluded:

The language at issue in the license agreement lends itself to another meaning that is more plausible: that both parties intended that Sanyo and Intel would have the right to make, use and sell their own parts without the constraints imposed by the patent rights of the other party.

....

It seems unlikely that the word "Sanyo" was used here to prevent Sanyo from having parts that use Intel patents made for Sanyo by others. The license already prevents the implication of "have made" rights. The use of the word "Sanyo" to impose a restriction against "have made" rights would have been ambiguous and not the customary way to express this restriction.

ID at 27.

We agree that Atmel has not established its license defense to infringement, and that the ALJ's reasoning is persuasive. Moreover, the ALJ's interpretation is consistent with other provisions of the agreement.

The language of paragraph 3.5 grants Sanyo a world-wide, royalty-free license to practice "Intel Patents." The agreement defines the term "Intel Patents" broadly, covering "any and all" patents that Intel "owns or controls," including those of its subsidiaries. The only limitations in paragraph 3.5 are that Sanyo (1) may not sublicense, except to subsidiaries, and (2) may only make, use and sell "Sanyo ... products." Atmel's argument is that the "Sanyo" limitation precludes only "have made" rights, and Sanyo otherwise has an unlimited, royalty-free right to practice all Intel patents. Put another way, anything manufactured by Sanyo that utilizes any Intel patent is subject to the royalty-free license of paragraph 3.5.

Atmel's interpretation, however, tends to create an internal inconsistency in the agreement. Paragraphs 4.3 and 4.4 of the agreement require that Sanyo pay royalties to Intel on the sales of specific Intel chips made by Sanyo and on derivative products based on those chips, whether developed jointly or by Sanyo. Interpreting paragraph 3.5 as broadly as Atmel desires would encompass these chips and derivative products as royalty-free. For consistency of the agreement as a whole, the words "Sanyo ... products" as used in paragraph 3.5 are properly construed to cover only Sanyo designed and manufactured products and to exclude parts designed by others.

Such a consistent reading precludes the royalty-free, foundry manufacture by Sanyo of an "Atmel EPROM, using Atmel's design, putting Atmel's name and product designation on the EPROM, and selling the EPROM to Atmel for resale as an Atmel product." ID at 25. Atmel had the burden of proving its defense to infringement, Met-Coil Sys. Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687, 231 USPQ 474, 476 (Fed.Cir.1986), and we are convinced that the Commission properly determined that Atmel failed to do so.

Turning now to the Commission's holdings as to validity and infringement issues, we will consider the Intel patents in the reverse order of issuance.12

The '084 patent issued on August 4, 1987, and relates to "circuitry for enabling an EPROM to be programmed selectively for addressing either the full memory array (i.e., in a 'non-page mode') or for addressing the array by 'pages' (i.e., in a 'page mode')." Decision at 79.

Atmel13 argues that the '084 patent is invalid because the 27C512/13 EPROMs which embody the invention were placed on sale more than a year before the application's filing date of June 7, 1985. 35 U.S.C. § 102(b) (1988). Under 35 U.S.C. § 282 a patent is presumed valid, and proof of its invalidity requires "clear and convincing" evidence. Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463, 7 USPQ2d 1325, 1326-27 (Fed.Cir.1988).

It is undisputed that Intel distributed the 27C512/13 EPROMs to its sales force prior to June 7, 1984, the critical, or statutory bar, date, and that the chips were eventually sold to Intel's customers. The sole issue is whether any sales or offers to sell took place before the critical date. See In re Caveney, 761 F.2d 671, 676, 226 USPQ 1, 4 (Fed.Cir.1985). The ALJ made the following findings:

[A] sales conference was held in Phoenix, Arizona during the week of May 15, 1984. At that meeting 50 samples of the Intel 27C512/13 were distributed to 50 Intel salesmen.

....

The Intel sales conference in Phoenix was attended only by Intel personnel.... At the Phoenix conference, no sales person was allowed to take more than one 27512/13 [sic] sample.

....

Each of the samples given to the Intel salesmen at the Phoenix meeting during the week of May 15, 1984, about three weeks before the statutory bar, included the page mode circuit described and claimed in the '084 patent. No restriction was placed on the Intel salesmen as to how they could dispose of the 27C512/13 samples. The salesmen were expected to pass the samples on to their customers.

....

Intel was seeking commercial advantage by its distribution of 27512 [sic] samples before the critical date. Intel was trying to catch up with AMD [a competitor] in the marketplace.

....

... Intel's engineering samples are pre-production samples that are not available for sale. The Intel sales activities at and after the Phoenix meeting were clearly commercial in intent, however, and if it were clear that they occurred before the critical date, they would constitute an on-sale bar under 35 U.S.C. § 102(b). The distribution of the 512/13 samples to Intel customers before the critical date would constitute an on-sale bar against the validity of the patent pursuant to 35 U.S.C. § 102(b), but respondents did not prove by clear and convincing objective evidence that any of these customers in fact received the part before June 7.

ID at 236-40 (citations omitted, emphasis added).

The Commission, in agreeing that Atmel had failed to establish the on-sale bar defense, stated:

[We agree] with the ALJ that respondents failed to prove the existence of an invalidating on-sale bar under 35 U.S.C. § 102(b). One would have to engage in extensive inference drawing to conclude that Intel's 27C512/513 part was actually sold or offered for sale more than a year prior to the filing of the application that matured into the '084 patent. Such inference drawing does not in the Commission's view rise to the level of clear and convincing evidence. The Commission adopts the ALJ's factual findings and conclusions of law to the extent they are not inconsistent with the Commission's determination.

Decision at 84 (emphasis added).

Whether a particular activity raises the on-sale bar is a question of law, based on underlying factual considerations. See, e.g., J.A. LaPorte, Inc. v. Norfolk Dredging Co., 787 F.2d 1577, 229 USPQ 435 (Fed.Cir.1986); Shatterproof Glass Corp. v. Libbey-Owens Foods Co., 758 F.2d 613, 225 USPQ 634 (Fed.Cir.1985).

The "on-sale" bar encourages early disclosure and prevents extension of the statutory patent term. See King Instrument Corp. v. Otari Corp., 767 F.2d 853, 226 USPQ 402 (Fed.Cir.1985). A single sale or offer to sell is enough to bar patentability. Caveney, 761 F.2d at 676, 226 USPQ at 4. Even free distribution of a prototype may raise the on-sale bar if it is done to solicit a sale. Stearns v. Beckman Instruments, Inc., 737 F.2d 1565, 222 USPQ 457 (Fed.Cir.1984).

Atmel argues that the ALJ made all the findings necessary to raise the on-sale bar--(1) that the claimed invention was reduced to practice by Intel prior to the critical date; (2) that three weeks before the critical date, Intel gave the EPROMs embodying the claimed invention to salesmen; (3) that these salesmen were expected to distribute the samples to their customers; and (4) that Intel was seeking a commercial advantage by its distribution of samples before the critical date.

Although these findings may go far toward establishing an on-sale bar, they are insufficient, standing alone, for us to conclude that the Commission erred in refusing to find that any 512/13-type EPROMs were actually sold or offered for sale to Intel's customers. The ALJ found that, while it was "likely" that Intel's customers received the EPROMs before the critical date, Atmel had not proven this by clear and convincing evidence. Intel's distribution of the EPROMs to its own sales staff did not constitute a statutory bar. It is not a violation of the on-sale bar to make preparations for the sale of a claimed invention--an actual sale or offer to sell must be proved. 35 U.S.C. § 102(b). See also UMC Elec. Co. v. United States, 816 F.2d 647, 2 USPQ2d 1465 (Fed.Cir.1987).

Atmel offered no evidence, direct or circumstantial, showing that Intel made offers or sales before the initial date. All Atmel proved was that such offers or sales may have been "likely." As the Commission pointed out, "[o]ne would have to engage in extensive inference drawing to conclude that Intel's 27C512/513 part was actually sold or offered for sale more than a year prior to the filing of the application." Decision at 84. Clear and convincing evidence has been described as evidence which proves in the mind of the trier of fact "an abiding conviction that the truth of [the] factual contentions are [sic] 'highly probable.' " Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 2438, 81 L.Ed.2d 247 (1984) (citation omitted); see also Buildex, 849 F.2d at 1463, 7 USPQ2d at 1326-27. The extensive inferences Atmel would draw from the evidence presented are not the clear and convincing proof required. Thus, Atmel has failed to carry its burden of proof that a sale or offer to sell was made before June 7, 1984. 35 U.S.C. § 282; see also UMC, 816 F.2d at 657, 2 USPQ2d at 1472. Accordingly, we affirm the Commission's determination that the '084 patent was not proven to be invalid.

Before the Commission, Intel alleged that Atmel's and GI/M's "old" design 51 Series EPROMs infringed claims 1-10 of the '084 patent and that their "new" design 51 Series EPROMs infringe claims 1-4. Intel did not assert that any other EPROMs infringed the '084 patent. The ALJ determined that both Atmel's and GI/M's "old" design 51 Series EPROMs infringed claim 1 of the '084 patent under the doctrine of equivalents, but that the "new" design 51 Series EPROMs did not infringe that patent. On review, the Commission affirmed both decisions.14

The '084 patent discloses an integrated circuit read-only memory with a programmable selection means for selecting alternative addressing modes. Claim 1 of the '084 patent reads:

1. In an integrated circuit, read-only memory having n address lines used for accessing p words in one addressing mode, an improvement for providing an alternate addressing mode, comprising:

programmable selection means for selecting said alternate addressing mode; storage means for storing at least one signal; an address buffer coupled to one of said n address

lines, said buffer also being coupled to said storage means and said programmable selection means, the output of said buffer being controlled by said signal stored in said storage means when said alternate addressing mode is selected,

whereby when said alternate addressing mode is selected said p words in said memory may be selected with less than n address signals.

The special circuit disclosed in the '084 patent permits the address buffer to accept either input from the storage means or from the address line. (Huber Tr. 4783.) Which one is selected depends on whether page mode addressing has been selected. In non-page mode, the address buffer accepts the signal from the address line. In page mode, the address buffer accepts the signal stored in the latch. (Intel Ex. 15, col. 3, lines 5-18; Huber Tr. 4783.)

The special address buffer disclosed in the patent can perform normal address input signal processing, it can receive the logic signal stored in the latch, it can send a signal derived either from the address input or from the latch input, and it can implement page mode addressing when directed to do so by the programmable selection means. (Huber Tr. 4782-84.)

Respondents' old '512 parts do not have an address buffer coupled to the storage means or latch, as that term has been construed in the patent claims. Instead ... Atmel15 has a multiplexer. The multiplexer does not buffer the signal. It receives multiple signals and selects signals to be passed on to the decoder circuitry depending on whether the part is programmed for page mode or normal addressing. (Gust Perlegos Tr. 5064-65; Atmel Ex. 220.)

ID at 257 (emphasis in original).

Atmel's and GI/M's primary argument is that the accused device has no component which corresponds to the claimed "address buffer." The ALJ's findings make this argument unpersuasive. While it is true that the accused EPROMs use a multiplexer rather than an address buffer, the ALJ determined that the address buffer of the '084 patent contains additional circuitry to permit it to accept input from alternative sources and that this same function was performed in the accused device by a multiplexer. The ALJ expressly found that the "multiplexer ... is the functional equivalent of the special address buffer as it is described in the '084 patent specification." ID at 259. Moreover, the ALJ found that the buffering function performed by the special address buffer of the '084 patent was performed in the accused EPROMs "in another circuit" before being stored in the latch. ID at 259. The ALJ's findings were stated as follows:

The respondents' 27C512/513/515 parts using the old designs contain each element required by claim 1 of the '084 patent except the special address buffer. The do not literally infringe claims 1-10 of the '084 patent. The fact that a buffer circuit selects which signals are sent to the decoder in the embodiment in the patent does not mean that the use of a buffer circuit is a significant part of the invention and that nothing else can perform that function.

ID at 258-59. Based on these findings, the ALJ concluded that the accused EPROMs perform substantially the same function in substantially the same way to achieve substantially the same result. The Commission affirmed this conclusion, stating:

Both the multiplexer and the address buffer use an addressing signal to select a particular memory cell from an incoming address pin or latch. Thus, the accused circuits infringe claim 1 under the doctrine of equivalents because they perform substantially the same function in substantially the same way to obtain the same result as the invention claimed in the '084 patent.

Decision at 87.

A finding of infringement under the doctrine of equivalents is a factual determination. Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 936, 4 USPQ2d 1737, 1741 (1987) (in banc). We review the Commission's factual findings under the substantial evidence standard. SSIH Equip. S.A. v. United States Int'l Trade Comm'n, 718 F.2d 365, 371-372, 218 USPQ 678, 684 (Fed Cir.1983). The doctrine of equivalents does not require a one-to-one correspondence between the accused device and that disclosed in the patent. In Corning Glass Works v. Sumitomo Electric U.S.A., Inc., 868 F.2d 1251, 9 USPQ2d 1962 (Fed.Cir.1989), we held that infringement under the doctrine of equivalents may be established even though the accused device requires a number of components to perform functions which the patented invention achieves by use of one component. "[T]he determination of equivalency is not subject to ... a rigid formula. An equivalent must be found for every limitation of the claim somewhere in an accused device, but not necessarily in a corresponding component,...." Id. at 1259, 9 USPQ2d at 1968 (footnote omitted).

In the hearings, the operation of both the patented invention and the allegedly infringing device were discussed at length by the witnesses. There was testimony fully supporting the ALJ's findings that the multiplexer performed the selective signal acceptance function of the claimed address buffer and that, while the multiplexer did not act as a buffer, that function was performed elsewhere in the accused EPROMs. Accordingly, we cannot say that the ALJ's and the Commission's findings that the "old" 51 Series EPROMs infringed the '084 patent under the doctrine of equivalents were not supported by substantial evidence.

GI/M also contends that the Commission's finding of infringement under the doctrine of equivalents is incorrect because, although GI/M's "old" design 51 Series EPROMs are capable of performing page mode addressing, the EPROMs were never sold to operate in page mode. No customer was ever told how to convert the chip to page mode operation--or even that such conversion was possible. GI/M argues that an alleged infringer must intend its parts to be used in an infringing fashion and cites Fromberg, Inc. v. Thornhill, 315 F.2d 407, 415, 137 USPQ 84, 89 (5th Cir.1963), in support of its argument. As noted by Intel, there is no intent element to direct infringement. See 35 U.S.C. § 271(b) and (c). Fromberg deals with induced and contributory infringement and is therefore inapposite. Because the language of claim 1 refers to "programmable selection means" and states "whereby when said alternate addressing mode is selected" (emphases added), the accused device, to be infringing, need only be capable of operating in the page mode. Contrary to GI/M's argument, actual page mode operation in the accused device is not required.

GI/M contends further that the Commission's finding of infringement is flawed because Intel's expert witnesses failed to opine in terms of the three-part test for the doctrine of equivalents. See Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855-56, 94 L.Ed. 1097 (1950); Pennwalt, 833 F.2d at 934, 4 USPQ2d at 1739. This argument is meritless.

Unlike a jury in a district court case, the Commission resolves disputes involving patent infringement matters with some regularity and thus is aware of doctrine of equivalents jurisprudence. More importantly, in this case the Commission demonstrated its awareness of the three-part test and applied it to facts here involved. The Commission expressly recited its conclusions in terms of the function, way, and results of the claimed invention and the accused devices. See Decision at 87 (quoted ante at p. 832). Under these circumstances, it is unimportant that the testimony before the Commission, which fully supports the Commission's analysis, was not given in the precise function/way/result terminology of Graver Tank.

Thus, we are not persuaded that the Commission erred in affirming the ALJ's determination that