To counter such mischief, I think the Supreme Court meant to whittle the doctrine down in size. In short, the United States thus should not give up on this case just because we deny its petition. Instead, the Solicitor General should ask the Supreme Court to grant a writ of certiorari in this case. If the United States has misread the Supreme Court, the Court may let the panel's decision stand with a swift denial of the certiorari petition. If the United States is correct, the Supreme Court could grant the petition and might even correct our error per curiam.
Cases involving the doctrine of equivalents continue to flow through the federal courts.
The question posed by the United States in this case is of utmost importance to patent law. A swift answer to the question is needed. Therefore, it perhaps is wise of my colleagues to decline to spend the many months we would consume in rehearing this case, in favor of clearing the path for the Solicitor General to make his way to the best source for the answer to his question.