Reexamination

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Today, Thu., May 17, 2012, in In re Baxter, No. 2011-1073, the Federal Circuit (Newman (dissent), Lourie and Moore) affirmed the Patent Office’s finding patent claims invalid in a reexamination that was provoked by a party who failed to invalidate those claims in a parallel litigation.  This case shows a benefit to a patent challenger seeking reexamination of patents asserted against them in parallel litigation.
Continue Reading Patent Alert: Federal Circuit affirms reexam invalidating patent found not invalid in litigation (In re Baxter)

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)

Today, Wed., Mar. 14, 2012, in Aspex Eyewear v. Marchon Eyewear, No. 2011-1147, the Federal Circuit (Rader, Bryson and Reyna) ruled that res judicata barred a patent owner from asserting new and amended claims issued from reexamination against products that were found not to infringe the original patent.  The Court also ruled that a patent owner may include new products in a pending litigation, but is not required to do so.  Issue preclusion, however, may apply to those new products in a following action.
Continue Reading Patent Alert: Federal Circuit rules res judicata bars action on claims amended or added in reexam (Aspex Eyewear v. Marchon Eyewear)