What activities are protected by intervening rights in patent reexamination?
Intervening rights in patent reexamination protect specific activities carried out before the issuance of a reexamination certificate. According to 35 U.S.C. 307(b), these activities include:
- Making the patented invention
- Purchasing the patented invention
- Using the patented invention within the United States
- Importing the patented invention into the United States
- Making substantial preparation for any of the above activities
The law states: “Any proposed amended or new claim determined to be patentable and incorporated into a patent following a reexamination proceeding will have the same effect as that specified in section 252 for reissued patents on the right of any person who made, purchased, or used within the United States, or imported into the United States, anything patented by such proposed amended or new claim, or who made substantial preparation for the same, prior to issuance of a certificate under the provisions of subsection (a) of this section.“
These protections ensure that parties who acted in good faith before the patent was amended are not unfairly penalized by the changes resulting from reexamination.
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