Intervening Rights : CAFC Alert

The threshold to acquiring intervening rights by reexamination requires new or amended claim language

Bernadette McGann | March 21, 2012

Marine Polymer Technologies, Inc. v Hemcon, Inc. (en banc)

March 15, 2012

Panel: Rader, Newman, Lourie, Bryson, Gajarsa, Linn, Dyk, Prost, Reyna and Wallach (en banc)

Opinion for the court by Lourie. Rader, Newman, Bryson and Prost join in full and Linn joins in part II (Intervening Rights)

Opinion for the dissent by Dyk. Gajarsa, Reyna, and Wallach join in full and Linn joins in parts I-II (Claim construction, dismissing HemCon motion for JMOL and/or new trial)

Summary:

Based on statutory interpretation of 35 U.S.C. §307(b), the Majority held that the threshold requirement for acquiring intervening rights is that there must be amended or new claims that did not exist in the original patent but have been found to be patentable during reexamination.  The CAFC held that amended means to make formal changes to the actual language of a claim.  A claim is not amended merely because the scope of the claim has been altered by arguments presented during reexamination.


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