What triggers intervening rights in inter partes reexamination?
Intervening rights in inter partes reexamination are triggered when a patent’s claims are amended or new claims are added during the reexamination process. The MPEP 2693 states:
“Any proposed amended or new claim determined to be patentable and incorporated into a patent following an inter partes reexamination proceeding shall have the same effect as that specified in section 252 of this title for reissued patents“
This means that intervening rights come into play when:
- Existing claims are amended during reexamination
- New claims are added to the patent during reexamination
- These amended or new claims are determined to be patentable
- A certificate of patentability is issued for these claims
The issuance of this certificate marks the point at which intervening rights become applicable.
To learn more:
Topics:
MPEP 2600 - Optional Inter Partes Reexamination,
MPEP 2693 - Intervening Rights,
Patent Law,
Patent Procedure