Intervening Or Disappearing Rights?

Last week, the Federal Circuit, sitting en banc, gave a shot in the arm to patentees with regard to the “intervening rights” doctrine in its Marine Polymer Technologies, Inc. decision.  The Court confirmed that “intervening rights” (which limits a patentee’s ability to recover for past damages) only apply when there are new or amended patent claims as a result of reexamination.  Prior thereto, a three judge panel of the Fed Circuit held that the doctrine had been triggered by the patentee’s arguments made during reexamination even though no amendments had been made.   In light of this decision, patentees will sleep easier, knowing that they can make arguments during reexamination without losing their claims for past damages.

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