How do intervening rights affect patent infringement claims?

Intervening rights can significantly affect patent infringement claims in the following ways:

• They provide a defense against infringement for certain activities during the lapse period
• Absolute intervening rights protect specific items made, purchased, or used before reinstatement
• Equitable intervening rights may allow continued practice even after reinstatement
• They can limit the damages or remedies available to the patent owner

MPEP 2591 notes: “The court is to determine whether the terms are reasonable under the circumstances, and here the court should take into consideration the investments necessarily made or business commenced before the revival of the patent.” This indicates that the court will balance the interests of the patent owner against those who relied on the patent’s lapsed status.

To learn more:

• intervening rights
• patent infringement
• patent reinstatement
• infringement defense