Less Common Defenses To Patent Infringement

Technology companies and manufacturers know that they do not infringe a patent if they (or their products) do not practice a claimed invention. But did you know that there are certain circumstances where your company or its products can practice every single element of a patent and not legally infringe that patent?

The doctrines of intervening rights and prior commercial use allow for just that. For the accused infringer, these principles are the equivalent of a get-out-of-jail-free card. For the patent owner looking to assert its patents, they can be a death knell.

Intervening rights

Intervening rights stem from the inequities of a person obtaining a patent — and thus putting the public on notice as to a claimed invention — and then later changing the scope of the claimed invention through a reissue application.