Extract to table

Because the claim limitation was narrowed by amendment during prosecution, however, the Festo presumption of surrender applies, and OWS must rebut that presumption by establishing one of three recognized exceptions

Under this scenario, the PHE analysis for Claim 12 proceeds as outlined in this memorandum — OWS must rebut the Festo presumption for the specific "two-dimensional" limitation

The patentee must make a "persuasive showing" that one of the three exceptions applies

However, where the rebuttal depends on disputed factual issues (such as whether the accused equivalent was foreseeable or whether the prosecution attorney's intent was narrowly directed), those factual disputes may preclude summary judgment and must be resolved by the finder of fact

Strategy Note: The claim construction briefing (OWS's Opening Brief filed November 15, 2024; Reply Brief due December 20, 2024) must be coordinated with this PHE analysis