An Issue with Reissue: Lam Research v. Schunk Semiconductor

Motion re Intervening Rights Denied, Lam Research Corp. Micro Inc. v. Schunk Semiconductor, et al., Case No. C 03-1335 (Judge Edward Chen)

The Patent Office's reexamination and post-grant review procedures have generated a lot of discussion lately.  But a recent order in the Lam Research case shines the spotlight on their older and somewhat less divisive sibling procedure, the reissue.  Lam Research obtained a reissue of one its patents in litigation to fix a claim that had been previously impossible to infringe.  Defendant Xycarb, which is owned by Schunk, argued that Lam's correction nullified its infringement case because Xycarb had acquired intervening rights with respect to the reissued patent.  Judge Chen disagreed and concluded that the reissued claim was "substantially identical" to the original version of the patent claim, based on a review of the specification, the nature of the correction, and prosecution history.