There are two contexts that the "all-elements rule" comes into play -- during examination and during litigation.
During examination:
All elements must be taught or suggested by the prior art in order for a claim to be rejected under for obviousness (35 U.S.C. 103) or for lack of novelty (35 U.S.C. 102). Note that with the latter type of rejection, all elements must be found "within the four corners of a single reference."
During litigation:
All elements must be present in the accused device/process in order for there to be direct infringement of the patented device/process.
It is also worth mentioning that the all-elements rule is subject to at least three limitations: the doctrine of equivalents, the Examiner taking what is known as "Official Notice," and the doctrine of inherency. These three topics will each be discussed in subsequent posts.
During examination:
All elements must be taught or suggested by the prior art in order for a claim to be rejected under for obviousness (35 U.S.C. 103) or for lack of novelty (35 U.S.C. 102). Note that with the latter type of rejection, all elements must be found "within the four corners of a single reference."
During litigation:
All elements must be present in the accused device/process in order for there to be direct infringement of the patented device/process.
It is also worth mentioning that the all-elements rule is subject to at least three limitations: the doctrine of equivalents, the Examiner taking what is known as "Official Notice," and the doctrine of inherency. These three topics will each be discussed in subsequent posts.
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