What are absolute intervening rights?
“Absolute” intervening rights shields a party from liability for infringement of new or modified claims if the accused products were made or used before the patent reissues.
What happens when a reissue application goes abandoned?
Generally, if a reissue application is abandoned, the original patent remains in force because surrender of the patent did not occur.
Can you assert a patent in reissue?
Finally, only a patent owner can request a reissue of the patent, but once the reissue process has begun, a third party may file a protest arguing why a patent claim is not patentable. Other than the protest, a third party cannot participate in the reissue process.
What is a reissued patent?
A reissue patent is a patent issued by the U.S. Patent and Trademark Office (PTO) to correct a significant error in an already issued patent. A reissue patent may be issued for utility, design, or plant patents. A reissue patent does not change the term of the original patent.
What are the intervening rights in a reexamination?
“Absolute” intervening rights provide an accused infringer with the right to use or sell a product that was made, used, or purchased before the grant of the reexamination certificate, as long as such activity did not infringe a claim of the reexamined patent that was in the original patent.
What does “absolute intervening rights” mean?
First sentence of Sec. 252, ¶ 2 provides “absolute intervening rights” for “the specific thing” made, purchased, offered to sell, sold, imported or used, before the grant of the reissue patent.
What are the two degrees of intervening rights?
Intervening rights are divided into two degrees, or types, of intervening rights: absolute intervening rights and equitable intervening rights. [38] This distinction is dictated by the language used in the second paragraph.
What is the grant of intervening rights?
The grant of intervening rights provides a third party with a number of strategies when presented with a potentially troublesome patent. A third party’s strategy typically focuses on causing a substantive change in the patent holders’ claims that either avoids infringement altogether or triggers the doctrine of intervening rights.