New Consequence for Narrowing Claims During Patent Reexamination or Reissue

A recent Federal Circuit case, Marine Polymer Tech. v. Hemcon, Inc. (Fed. Cir. 2011) held that the patentee’s narrow of a claim during reexamination gives rise to absolute intervening rights for an accused infringer’s products made or sold prior to the reexamination request.

A patentee rarely wants narrower claims, but sometimes it is necessary.  As a result of this case, if you must narrow a claim during reexamination or reissue of your patent, you will not be able to seek damages from an infringing product before the date that reexamination was requested. 

If you’d like to discuss how this case will affect your company, please get in touch with me.

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