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FESTO CORP. v. SHOKETSU KINZOKU KOGYO KABUSHIKI

No. 05-1492.

493 F.3d 1368 (2007)

FESTO CORPORATION, Plaintiff-Appellant, v. SHOKETSU KINZOKU KOGYO KABUSHIKI CO., LTD., (also known as SMC Corporation) and SMC Pneumatics, Inc., Defendants-Appellees.

United States Court of Appeals, Federal Circuit.

July 5, 2007.

Attorney(s) appearing for the Case

Charles R. Hoffmann, Hoffmann & Baron, LLP, of Syosset, NY, argued for plaintiff-appellant. With him on the brief were Glenn T. Henneberger and Anthony E. Bennett.

Arthur I. Neustadt, Oblon, Spivak, McClelland, Maier & Neustadt, P.C., of Alexandria, VA, argued for defendants-appellees. Of counsel on the brief was James B. Lampert, Wilmer, Cutler, Pickering, Hale and Dorr LLP, of Boston, Massachusetts.

Before MICHEL, Chief Judge, NEWMAN, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge NEWMAN.

DYK, Circuit Judge.

This case raises the question of whether an equivalent is foreseeable within the meaning of Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 740, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002) ("Festo VIII"), and subject to surrender under the doctrine of prosecution history estoppel...

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