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
