What legal precedents support the application of intervening rights in reexamination?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Several important legal cases have established and reinforced the application of intervening rights in reexamination proceedings. The MPEP 2293 cites the following key cases:

• Fortel Corp. v. Phone-Mate, Inc., 825 F.2d 1577, 3 USPQ2d 1771 (Fed. Cir. 1987)
• Kaufman Co., Inc. v. Lantech, Inc., 807 F.2d 970, 1 USPQ2d 1202 (Fed. Cir. 1986)
• Tennant Co. v. Hako Minuteman, Inc., 4 USPQ2d 1167 (N.D. Ill. 1987)
• Key Mfg. Group, Inc. v. Microdot, Inc., 679 F. Supp. 648, 4 USPQ2d 1687 (E.D. Mich. 1987)

These cases have consistently upheld the principle that intervening rights in reexamination proceedings parallel those in reissue proceedings, and that the rights detailed in 35 U.S.C. 252 apply equally in both situations. This body of case law provides a strong legal foundation for the application of intervening rights in patent reexamination.