Today, Thu., Mar. 15, 2012, in Marine Polymer v. Hemcon, No. 2010-1548, the Federal Circuit en banc (Opinion by Lourie; Dissent by Dyk) in a split decision ruled that intervening rights do not arise for claims that were not amended or added in reexamination even if arguments during reexamination changed the claim scope.  The Majority ruled that the first step in assessing intervening rights is to determine whether claims were amended or added in reexamination.  If not, then the court should not proceed to the second step of determining whether there were substantive changes to claim scope.
Continue Reading Patent Alert: Split en banc Federal Circuit rules no intervening rights for reexamined claims not amended/new (Marine Polymer v. Hemcon)