What activities are protected by intervening rights?
Intervening rights protect a range of activities related to the patented invention during the lapse period. MPEP § 2591 outlines the following protected activities:
- Making
- Purchasing
- Importing
- Using
- Selling to others for use or sale
The MPEP specifically states:
“…the right of any person or his or her successors in business who made, purchased, imported, or used after the 6-month grace period but prior to the acceptance of the late maintenance fee anything protected by the patent, to continue the use or importation of, or to sell to others to be used or sold, the specific things made, purchased, imported, or used.”
Additionally, the MPEP notes that courts may provide for:
“…the continued practice of any process, practiced, or for the practice of which substantial preparation was made, after the 6-month grace period but prior to the acceptance of the late maintenance fee.”
This protection extends to both completed actions and substantial preparations made during the lapse period.
To learn more: