What is the relationship between intervening rights and the effective date of the reexamination certificate?

What is the relationship between intervening rights and the effective date of the reexamination certificate?

The effective date of the reexamination certificate is crucial in determining the application of intervening rights. According to MPEP 2293:

“The date of the reexamination certificate is the date of issue from which the patent claims as stated in the certificate have effect.”

This relationship has several important aspects:

• Absolute intervening rights apply to products made, used, or sold before the date of the reexamination certificate.
• Equitable intervening rights may be considered for activities after the certificate date, based on substantial preparations made before.
• The reexamination certificate date serves as the cutoff point for determining which activities might be protected under intervening rights.
• Any changes to claim scope become effective on the certificate date, potentially affecting the rights of third parties from that point forward.

Understanding this relationship is crucial for both patent holders and potential infringers in assessing their rights and obligations following a patent reexamination.

To learn more:

• intervening rights
• reexamination certificate
• effective date
• patent reexamination