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Intervening Rights Only Arise During Re-examination When a Claim Has Been Amended or Added

By Angie M. Hankins

On reconsideration en banc, an equally divided Federal Circuit affirmed and reinstated the judgment of a district court finding that defendant-appellant HemCon, Inc. (“HemCon”) infringed plaintiff-appellee Marine Polymer Technologies, Inc. (“MPT”)'s U.S. Patent 6,864,245 (“the '245 patent”) and awarding damages of $29,410.26. Marine Polymer Tech., Inc. v. HemCon, Inc., No. 2010-1549, 2012 WL 858700 (Fed. Cir. March 15, 2012). Moreover, a majority found that intervening rights only arise as a result of re-examination when a claim has been amended or added during the re-examination, even though the issue was not considered below.

In a strongly worded dissent, Judge Alan D. Lourie reached the opposite conclusion and called the majority's decision on intervening rights dictum. In September 2011, a panel of the Federal Circuit had reversed the district court's decision because the panel found that HemCon had acquired intervening rights. MPT petitioned for en banc rehearing and, in January 2012, the Federal Circuit granted MPT's petition and vacated the panel's judgment.

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