dissenting from the Order declining the suggestion for rehearing in banc.
INTRODUCTION
Because the doctrine of equivalents “has taken on a life of its own, unbounded by the patent claims,” the Supreme Court severely curtailed the reach of the doctrine in its recent decision in Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The curtailment is precise and explicitly defined in the Court’s opinion, as I will demonstrate below, and we are obligated to give effect to the restrictions the Supreme Court has placed on the doctrine. The panel opinion in this case, however, did not heed these instructions and has left the doctrine of equivalents virtually intact, notwithstanding the unmistakable intent of the Court to narrow the reach of the doctrine of equivalents. I am thus compelled to dissent from this missed occasion to square our view of the doctrine of equivalents with the view so recently stated with such force, clarity and precision by the Supreme Court. This court must follow, not ignore, the new framework set forth by the Supreme Court as it limited the doctrine of equivalents.
Patents provide inventors with a legal right, for a limited time, to exclude others from using, selling, offering to sell, or manufacturing the invention. In essence, patents give their owners significant power over the development of technology and markets by giving patentees the right to exclude others from using their inventions. For this privilege, the government extracts a public disclosure of the invention in the hope that, among other things, the disclosure of all inventions will add to the sum total of knowledge available to the general public. Competitors and the markets, as well as the courts, must be able to ascertain what subject matter is covered by this right to exclude. Public notice of the scope of the right to exclude, as provided by the patent claims, specification and prosecution history, is a critical function of the entire scheme of patent law. The notice function is critical because it provides competitors with the necessary information upon which they can rely to shape their behavior in the marketplace.
The Supreme Court has recently stated that “[tjhere can be no denying that the doctrine of equivalents, when applied broadly, conflicts with the definitional and public-notice functions of the statutory claiming requirement.” ' Id. at 1049. In Warner-Jenkinson, the Supreme Court has also provided useful guidelines that can be used by the public to better decipher the real meaning and scope of patents. Now that the Supreme Court has “clariflied] the proper scope of the doctrine,” we fail in our responsibility if we do not follow the Supreme Court’s precise instruction to restrain the doctrine of equivalents. Id. at 1045.
THE SUPREME COURT’S DECISION IN WARNER-JENKINSON
In Warner-Jenkinson, the Supreme Court announced a new framework expanding the preclusive effect of prosecution history es-toppel. The context of the Wamer-Jenkin-son opinion must be considered as we interpret the Supreme Court’s mandate. The Supreme Court specifically disagreed with the petitioner’s argument that, regardless of the reason the amendment was made, prosecution history estoppel barred all equivalents to an amended claim element. See Warner-Jenkinson, 117 S.Ct. at 1049-50. Instead, the Supreme Court differentiated between amendments that were made for patentability reasons, and those that were not. See id. The Supreme Court was clear that “[wjhere the reason for the change was not related to avoiding the prior art, the change may introduce a new element, but it does not necessarily preclude infringement by equivalents of that element.” Id. at 1050-51. Thus, the Supreme Court did not change the availability of the doctrine of equivalents where amendments were made for reasons clearly not related to patentability. Rather, the Supreme Court focused its attention on additional limitations to the doctrine of equivalents where amendments were *1475made for unknown reasons as well as reasons related to patentability.
In addressing the fact situation presented in Warner-Jenkinson, in which “a pH from approximately 6.0 to 9.0” was added to the claim, 117 S.Ct. at 1050, the Supreme Court noted that it was undisputed that the upper limit of 9.0 was added for patentability reasons, while the reason for adding the lower limit of 6.0 was unclear. The Supreme Court stated that, because it was unclear whether the limit of 6.0 was added for patentability reasons, its mere inclusion “did not necessarily preclude the application of the doctrine of equivalents as to that element.” Id. (emphasis added). This statement implies that, while the lower limit of 6.0 was not necessarily precluded from being infringed by equivalents, the upper limit of 9.0 could not be infringed by equivalents.
The Supreme Court next stated that it was “left with the problem, however, of what to do in a case like the one at bar, where the record seems not to reveal the reason for [amending the claim].” Warner-Jenkinson, 117 S.Ct. at 1051. The Supreme Court then resolved this issue by placing “the burden on the patent-holder to establish the reason for the amendment required during patent prosecution. The court then would decide whether that reason is sufficient to overcome prosecution history estoppel as a bar to application of the doctrine of equivalents to the element added by that amendment.” Id. (emphasis added). The language is clear. If the reason is insufficient to establish that the amendment was made for a reason not related to patentability, application of the doctrine of equivalents as to the amended element is barred by prosecution history es-toppel. In these circumstances, there is no application of the doctrine of equivalents to the element amended.
The Supreme Court further explained that where no reason was established for the amendment, prosecution history estoppel is applied as if there were a patentability reason for the change, thereby barring all application of the doctrine of equivalents as to that element. “Where no explanation is established, however, the court should presume that the PTO had a substantial reason related to patentability for including the limiting element added by amendment. In those circumstances, prosecution history estoppel would bar the application of the doctrine [off equivalents as to that element.” Id. (emphasis added). This statement of the law is clear and is not open to multiple interpretations. The first sentence of the above quotation explains that when an amendment is made for an unknown reason, the amendment is to be treated as if it were made for a reason related to patentability. The Supreme Court has therefore unequivocally equated amendments made for unknown reasons with amendments made for patentability reasons. For all intents and purposes, they are the same. In the next sentence, the Supreme Court states that prosecution history estoppel bars application of doctrine of equivalents to those very same amendments which it has just said are to be treated as amendments related to patentability. Thus, the logic proceeds as follows: amendments made for unknown reasons are to be presumed to be amendments made for reasons related to patentability; prosecution history estoppel bars the application of the doctrine of equivalents to amendments made for unknown reasons; therefore, prosecution history estoppel also bars application of the doctrine of equivalents in cases where the amendment was made for reasons related to patentability.
The Supreme Court has explicitly linked those amendments made for unknown reasons to those made for patentability reasons. See Warner-Jenkinson, 117 S.Ct. at 1051. There can only be one purpose to this link— these two situations are to be treated similarly. If the Supreme Court had intended merely to bar the application of the doctrine of equivalents to amendments made for unknown reasons, this explicit link would have absolutely no purpose in the context of the opinion. Had the Supreme Court intended to bar the application of the doctrine of equivalents only to those amendments made for unknown reasons, it would have merely stated that “where no explanation is established, prosecution history estoppel would bar the application of the doctrine of equivalents as to that element.” The link would be *1476superfluous. It defies logic to read Warner-Jenkinson to hold that an amendment that is known to have been made for patentability reasons is to be treated differently than an amendment that is presumed to have been made for patentability reasons.
I therefore believe the plain meaning of the Supreme Court’s decision in Warner-Jenkinson to be: if a claim is amended during prosecution, the patentee has the burden of showing why the change was made. If the change was made for reasons of patentability or if the reasons are unknown, then prosecution history estoppel completely bars the application of the doctrine of equivalents as to that amended element. If, however, the pat-entee can show the element was amended for a reason not related to patentability, then prosecution history estoppel does not bar the application of the doctrine of equivalents as to that amended element.
THE LITTON OPINION
The Litton panel implies that the Supreme Court did not mean what it said. Litton holds that the Supreme Court did not bar the application of the doctrine of equivalents to claim elements amended for patentability reasons. The majority interprets the Warner-Jenkinson opinion as holding that estop-pel only bars recapture of that subject matter actually surrendered during prosecution and therefore amendments to overcome prior art do not result in a complete surrender of alí subject matter beyond the literal scope of the amended claim. The Litton panel ultimately states that the Supreme Court only “articulated an additional rule to trigger, in applicable circumstances, prosecution history estoppel. But that is all the Supreme Court articulated ... the Court did not change the scope or effect of the estoppel.” Litton Sys., Inc. v. Honeywell, Inc., 140 F.3d 1449, 46 U.S.P.Q.2d 1321, 1326 (Fed.Cir.1998). In light of the explicit language used by the Supreme Court, this simply cannot be true.
The majority seeks to evade the clear holding of the Supreme Court through a tortured interpretation of the Warner-Jenkinson opinion.1 The Litton panel argues that the quotations from the Supreme Court cited above read in context do not completely preclude application of prosecution history es-toppel to the doctrine of equivalents with regard to an amendment made for reasons related to patentability. In a convoluted attempt to avoid the literal language of the Supreme Court’s holding, the Litton panel cites to footnotes 6 and 7 in Warner-Jenkinson to show that the Supreme Court did not mean what it said in the text of its opinion. Id. To begin with, it seems to be a peculiar method of legal analysis to use the footnotes to overcome the clear language of the text of an opinion. In addition, even if we assume these footnotes do contradict the text — how do we know whether the Supreme Court really meant what it said in the text or in the footnotes? Isn’t the more appropriate analy*1477sis to give weight to the clear textual provisions?
Moreover, these footnotes do not even contradict the clear meaning of the text. The footnotes do not relate to the relevant textual provisions of the opinion, but rather modify other parts of the opinion. The Litton panel argues that in footnote 6, the Supreme Court refuses to “change the rules of the game.” Id. However, while the Litton panel’s citation is correct, the conclusion it draws from the footnote is faulty. In footnote 6, the Supreme Court refuses to change the rules of the game only with respect to the petitioner’s proposed any-type-of-amendment, no-equivalents rule. See Warner-Jenkinson, 117 S.Ct. at 1050. This does not in any way modify the clear reasoning in an entirely different section of the text, which discusses amendments made for reasons related to patenta-bility.
Similarly, as the Litton panel recognizes, footnote 7 does not address the issue of when the doctrine can be applied in light of an amendment related to patentability. Litton, 140 F.3d 1449, 46 U.S.P.Q.2d at 1326. Footnote 7 explains only how the estoppel is to be applied when an amendment is not related to patentability. Again, no conclusion as to the application of prosecution history estoppel to amendments made for reasons related to pat-entability can be drawn from this footnote. See Warner-Jenkinson, 117 S.Ct. at 1050.
The Litton panel further states that the caselaw from the Supreme Court and Federal Circuit regarding the scope of prosecution history estoppel contradicts Honeywell’s reading of “a single isolated sentence” in the Warner-Jenkinson opinion. Litton, 140 F.3d 1449, 46 U.S.P.Q.2d at 1326. The Supreme Court is not required to reiterate its statements several times for them to carry weight with the lower courts. Moreover, this was not a single isolated sentence, or random “fluke” of a statement. The Supreme Court devoted an entire paragraph to its reasoning barring the application of the doctrine of equivalents to claim language amended for reasons related to patentability. In addition, the Supreme Court repeats this statement twice: “The court then would decide whether that reason is sufficient to overcome prosecution history estoppel as a bar to application of the doctrine of equivalents to the element added by that amendment____ In those circumstances [the amendment is presumed to have been made for reasons related to pat-entability], prosecution history estoppel would bar the application of the doctrine [of] equivalents as to that element.” Warner-Jenkinson, 117 S.Ct. at 1051. Moreover, the Supreme Court specifically referred to this portion of its opinion when it said “[s]o long as the doctrine of equivalents does not encroach beyond ... limits to be discussed infra, at 1051-1052,1053, n. 8, and 1054-1055, we are confident that the doctrine will not vitiate the central functions of the patent claims themselves.” Id. at. 1049 (emphasis added). Pages 1051 and 1052 are the very pages that contain the language barring the application of doctrine of equivalents to claim language amended for reasons related to pat-entability. Thus, it is evident that this explicit limitation in the Supreme Court’s opinion was not some kind of inadvertent error, but rather an essential part of the Supreme Court’s plan to limit the doctrine of equivalents. We need to be clear in interpreting the Supreme Court’s language and we must be consistent in our approach.
The Litton panel also cites to two Supreme Court cases to support its reading of Warner-Jenkinson. The Litton panel cites Keystone Driller Co. v. Northwest Engineering Corp., 294 U.S. 42, 55 S.Ct. 262, 79 L.Ed. 747 (1935) and Smith v. Magic City Kennel Club, Inc., 282 U.S. 784, 51 S.Ct. 291, 75 L.Ed. 707 (1931) for the proposition that the Supreme Court has acknowledged the concept that an estoppel has an appropriate scope. The best that can be said of these cases is they hold that, where an amendment has been made for patentability reasons, the patentee is es-topped from recapturing through the doctrine of equivalents the originally claimed element. See Keystone Driller, 294 U.S. at 48, 55 S.Ct. 262; Smith, 51 S.Ct. at 293-94. These cases did not present to the Supreme Court the situation in which a patentee attempts to recapture matter that was not expressly disclaimed by amendment. Consequently these cases cannot be cited to support the proposition that the Supreme Court *1478has already recognized that an estoppel is anything less than a complete bar to application of the doctrine of equivalents.
In Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 62 S.Ct. 513, 86 L.Ed. 736 (1942), the Supreme Court was presented with a situation in which the claim at issue was amended from a broader scope to a narrower one. Id. at 132-33, 62 S.Ct. 513. The patentee asserted the doctrine of equivalents to cover devices that fell somewhere within the scope of the broader claim, but not within the narrower, amended claim. The Supreme Court stated that “[b]y the amendment he recognized and emphasized the difference between the two phrases and proclaimed his abandonment of all that is embraced in that difference.” Id. at 136, 62 S.Ct. 513. Thus, the Supreme Court was clear that the surrender was complete and covers all structures between the precise matter surrendered and the structure literally claimed after amendment. In other words, all asserted equivalents as to the amended element had been abandoned during prosecution.
The Litton panel finally argues that the Supreme Court did not reach the scope of an estoppel in cases where the patent claims have been amended for reasons of patentability because the Supreme Court remanded for fact finding on application of the presumption. See Litton, 140 F.3d 1449, 46 U.S.P.Q.2d at 1327. While correct, this does not support the panel’s conclusion that Warner-Jenkinson did not change the scope of subject matter precluded by an estoppel. Rather, the Supreme Court remanded for determination of the reason for the addition of the lower pH limit. This was done in order to determine whether the newly articulated Wamer-J enkinson presumption has been sufficiently rebutted to justify a finding that the amendment was not made for reasons of patentability and thus is entitled to some range of equivalents despite the amendment. Thus, the Supreme Court’s decision to remand does not affect its decision regarding the preclusive effect of an amendment made for reasons related to patentability-
We require practitioners who appear before this court to apply rigorous logic and consistency in their advocacy; we should require no less of ourselves whenever we are providing directions to the bar. We should not allow ourselves the belief that we can interpret a Supreme Court opinion and, by metaphysical metamorphosis, transform its position to one which we prefer.2
For the above-stated reasons, I believe the Litton panel misreads the clear instructions of Warner-Jenkinson. Given the serious ramifications of the Litton panel’s views on the application and scope of the doctrine of equivalents in light of the clear instruction from the Supreme Court to the contrary, I believe that this case warranted in bane review.
. For example, the panel opinion states that "the entire context of the Warner-Jenkinson opinion shows that the Supreme Court approved [of] the PTO's practice of requesting amendments with the understanding that the doctrine of equivalents would still apply to the amended language.” Litton, 140 F.3d 1449, 46 U.S.P.Q.2d at 1326. There is no evidence that such a practice exists. In deciding whether to allow a patent application to issue, an examiner does not consider the doctrine of equivalents. The United States Patent and Trademark Office (PTO) requires its examiners to determine only whether a patent application meets the statutory requirements of Title 35 of the United States Code as well as various internal regulations. As a judicially-created doctrine, the doctrine of equivalents is not found anywhere in either Title 35 of the United States Code or in the Code of Federal Regulations governing PTO practice. As such, an examiner is in no way required or directed to consider the application of the doctrine of equivalents in determining whether to allow a particular patent application. Although the Manual of Patent Examining Procedure section 904.01(b) states that all subject matter that is the patentable equivalent of the subject matter defined in the claim is to be considered by the examiner, this section references sections 2181-84, which specifically refer to equivalents in the context of means-plus-function claims. Section 2186 similarly refers to the need for examiners to consider decisions involving the doctrine of equivalents, but only as they relate to determining equivalents in the context of examining claims written in means-plus-function form under 35 U.S.C. § 112, ¶ 6. There is no official directive from the PTO, nor any common practice among patent examiners, of considering during prosecution equivalents of claim limitations which are not written in means-plus-function form. The doctrine of equivalents is therefore not "assumed” by patent examiners in allowing claims as is suggested in the Litton opinion.
. It is interesting to note that Judge Newman’s views expressed in this denial of the in banc hearing, continue the metamorphosis where a threatened 35 U.S.C. 112 rejection in the Litton patent prosecution history becomes in fact a 35 U.S.C. 112 amendment in the Litton opinion.