Editing Doctrine of equivalents (section)

====Current law====

In 2007 the EPC was revised as [[EPC 2000]]. This amended the Protocol on the Interpretation of Article 69 to require the courts of all contracting states, including the UK, to take due account when considering infringement "of any element which is an equivalent to an element specified in the claims".<ref name="EPC2000" />

In 2017, [[David Neuberger, Baron Neuberger of Abbotsbury|Lord Neuberger]] in ''Actavis UK v Eli Lilly'' held that the Protocol questions should be revised. The correct questions to ask when determining whether there has been non-literal infringement, according to the [[Supreme Court of the United Kingdom|Supreme Court]], should now be<ref name="Actavis">{{Cite web |url=https://www.supremecourt.uk/cases/uksc-2016-0002.html |title=Eli Lilly and Company (Appellant) v Actavis UK Limited and others (Respondents) |date=12 July 2017 |website=The Supreme Court |series=[2017] UKSC 48 |access-date=4 January 2019}}</ref>
# "Notwithstanding that it is not within the literal meaning of the relevant claim(s) of the patent, does the variant achieve substantially the same result in substantially the same way as the invention, ie the inventive concept revealed by the patent?"
# "Would it be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the variant achieves substantially the same result as the invention, that it does so in substantially the same way as the invention?"
# "Would such a reader of the patent have concluded that the patentee nonetheless intended that strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention?"

In order to establish infringement in a case where there is no literal infringement, a patentee must establish that the answer to the first two questions is “yes” and that the answer to the third is “no”.