Federal Circuit issues en banc decision in Marine Polymer Techn. v. Hemcon case. The decision clarifies when intervening rights can arise as a result of a patent reexamination. Arguments alone cannot result in intervening rights.
The patent community was taken by surprise when, in September of 2011, a three judge panel of the Court of Appeals for the Federal Circuit vacated a jury verdict of $29.4M in past damages for infringement of Marine Polymer’s patent, on the grounds of intervening rights arising as a result of a reexamination of the patent.
The most notable aspect of the Federal Circuit panel decision was that it found intervening rights applied as a result of arguments presented in the reexamination, and despite the fact that no amendments had been made to the language of the claims. The panel majority determined that the reexamination arguments disavowed claim scope and thus changed the scope of the original (pre-reexamination) claims. The panel majority held that in these circumstances it was appropriate for intervening rights to apply.
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