Patent CourtU.S. patent litigation reference

The all-elements rule

Controlling: Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 29 & 39 n.8 (1997); Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir. 1987) (en banc); Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359 (Fed. Cir. 2008).

The all-elements rule — the Federal Circuit often calls it the all-limitations rule — says that a product or process infringes only if it contains every limitation of an asserted claim, either literally or by an equivalent. Missing even one limitation defeats infringement of that claim. The same logic runs in reverse for validity: a single prior-art reference anticipates only if it discloses every limitation, arranged as in the claim.

The rule

A patent claim defines the invention by its limitations, and every limitation matters. To prove infringement, the patentee must show that the accused product or process meets each limitation of the asserted claim. If one limitation is absent — and no equivalent of it is present — the claim is not infringed, no matter how similar the accused product is overall.

The rule applies at two levels:

Courts use "element" and "limitation" interchangeably in this context. The Federal Circuit has explained that in this rule "element" is used in the sense of a claim limitation, see Corning Glass Works v. Sumitomo Electric U.S.A., Inc., 868 F.2d 1251 (Fed. Cir. 1989), which is why both "all-elements rule" and "all-limitations rule" appear in the cases.

Source of the rule

The rule follows from the statutory requirement that claims particularly point out and distinctly claim the invention, 35 U.S.C. § 112(b), and from the public-notice function of claims: the public is entitled to rely on each limitation as a boundary of the patentee's rights.

The Federal Circuit applied it to the doctrine of equivalents en banc in Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir. 1987), holding that equivalence must be established for each limitation of the claim. The Supreme Court adopted the same approach in Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997):

Each element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole.

Id. at 29. The Court added that if a theory of equivalence would entirely vitiate a particular claim element, partial or complete judgment should be rendered by the court. Id. at 39 n.8.

Vitiation

"Vitiation" is the name for the all-elements rule's limit on the doctrine of equivalents. An equivalence theory that would read a limitation out of the claim entirely — for example, treating "mounted on the top" as equivalent to "mounted on the bottom," or a "non-zero" value as equivalent to zero — is legally barred.

The Federal Circuit has cautioned that vitiation is not an exception to the doctrine of equivalents but a conclusion that, on the evidence, no reasonable jury could find the element equivalent. Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349 (Fed. Cir. 2012). The question is whether the accused feature performs substantially the same function in substantially the same way to achieve substantially the same result, or differs only insubstantially, for that limitation — not whether the two products look alike overall.

The parallel rule for anticipation

Validity has a mirror image of the all-elements rule. A claim is anticipated under 35 U.S.C. § 102 only if a single prior-art reference discloses every limitation of the claim, arranged or combined in the same way as in the claim. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359 (Fed. Cir. 2008). A reference may disclose a limitation expressly or inherently, but picking and choosing among separate embodiments of a reference to assemble the claim is not anticipation.

Obviousness under § 103 is different. It considers "the claimed invention as a whole," and a limitation missing from one reference may be supplied by another reference or, with care, by the knowledge and common sense of a person of ordinary skill. KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007). The Federal Circuit has warned that common sense cannot substitute for reasoned analysis when a limitation is missing altogether. Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355 (Fed. Cir. 2016). Every limitation must still be accounted for.

The often-quoted maxim "that which infringes, if later, would anticipate, if earlier" captures the symmetry. Peters v. Active Manufacturing Co., 129 U.S. 530 (1889).

How the rule plays out

Frequently asked questions

What is the all-elements rule in patent law?

It is the rule that an accused product or process infringes a claim only if it contains every limitation of that claim, either literally or by an equivalent. If any limitation is missing, that claim is not infringed.

Does the all-elements rule apply to the doctrine of equivalents?

Yes. Under Warner-Jenkinson (1997) and Pennwalt (1987), equivalence is tested limitation by limitation, and an equivalence theory that would vitiate a claim limitation entirely is barred as a matter of law.

Is there an all-elements rule for anticipation?

Yes. A single prior-art reference anticipates only if it discloses every claim limitation, arranged as in the claim, expressly or inherently (Net MoneyIN v. VeriSign, 2008). Obviousness, by contrast, may combine references.

What is vitiation?

Vitiation describes an equivalence argument that would effectively remove a claim limitation. The Federal Circuit treats it as a conclusion that no reasonable jury could find equivalence for that limitation (Deere v. Bush Hog, 2012).

See also

Authorities

Statutes

  • 35 U.S.C. § 102 — anticipation
  • 35 U.S.C. § 112(b), (f) — claims; means-plus-function
  • 35 U.S.C. § 271(a) — direct infringement

Cases

  • Peters v. Active Manufacturing Co., 129 U.S. 530 (1889)
  • Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931 (Fed. Cir. 1987) (en banc)
  • Corning Glass Works v. Sumitomo Electric U.S.A., Inc., 868 F.2d 1251 (Fed. Cir. 1989)
  • Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546 (Fed. Cir. 1989)
  • Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997)
  • KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007)
  • Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359 (Fed. Cir. 2008)
  • Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349 (Fed. Cir. 2012)
  • Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (en banc)
  • Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355 (Fed. Cir. 2016)

Last reviewed: October 2026