Marine Polymer V. HemCon: New Breed Of Intervening Right

Law360, New York (December 22, 2011, 12:15 PM EST) -- By statute, intervening rights excusing past infringement may arise when patent claims undergo substantive change during reissue or reexamination proceedings. In Marine Polymer Technologies Inc. v. HemCon Inc., No. 2010-1548, 2011 U.S. App., 100 U.S.PQ.2d (BNA) 1257 (Fed. Cir. Sept. 26, 2011) (Dyk, J.), a case of first impression, the Federal Circuit concluded that intervening rights arose during reexamination even though infringed claims of the original patent were word-for-word identical with those in the reissue patent.

A divided panel of the court thus concluded that defendant...
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