The surrender of the original patent shall take effect upon the issue of the reissued patent, and every reissued patent shall have the same effect and operation in law, on the trial of actions for causes thereafter arising, as if the same had been originally granted in such amended form, but in so far as the claims of the original and reissued patents are substantially identical, such surrender shall not affect any action then pending nor abate any cause of action then existing, and the reissued patent, to the extent that its claims are substantially identical with the original patent, shall constitute a continuation thereof and have effect continuously from the date of the original patent.
A reissued patent shall not abridge or affect the right of any person or that person’s successors in business who, prior to the grant of a reissue, made, purchased, offered to sell, or used within the United States, or imported into the United States, anything patented by the reissued patent, to continue the use of, to offer to sell, or to sell to others to be used, offered for sale, or sold, the specific thing so made, purchased, offered for sale, used, or imported unless the making, using, offering for sale, or selling of such thing infringes a valid claim of the reissued patent which was in the original patent. The court before which such matter is in question may provide for the continued manufacture, use, offer for sale, or sale of the thing made, purchased, offered for sale, used, or imported as specified, or for the manufacture, use, offer for sale, or sale in the United States of which substantial preparation was made before the grant of the reissue, and the court may also provide for the continued practice of any process patented by the reissue that is practiced, or for the practice of which substantial preparation was made, before the grant of the reissue, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced before the grant of the reissue.
Notes of Decisions
Click-To-Call Tech., Lp v. Ingenio, Inc., 899 F.3d 1321 (Fed. Cir. 2018).
· cites it 6× “That provision simply means that any amended or new claim incorporated in a reexamined patent has the same effect as that specified in 35 U.S.C. § 252 for a reissued patent only with respect to so-called “intervening rights.”
Fresenius USA, Inc. v. Baxter Int'l, Inc., 721 F.3d 1330 (Fed. Cir. 2013).
· cites it 3× “35 U.S.C. § 252 (emphasis added). Thus, while [p]rior to 1928 one could not recover for past in- fringement of a reissued patent, even if the claims were unchanged.”
Marine Polymer Tech., Inc. v. Hemcon, Inc., 672 F.3d 1350 (Fed. Cir. 2012).
· cites it 4× “See 35 U.S.C. § 252 (2006). Intervening rights do not accrue, however, where the accused product or activity infringes a claim that existed in the original patent and remains "without substantive change" after reissue.”
Kenall Mfg. Co. v. Cooper Lighting, LLC, 354 F. Supp. 3d 877 (E.D. Ill. 2018).
· cites it 3× “93 at ¶¶ 102-107 (citing 35 U.S.C. § 252 ). Specifically, *893 Cooper alleges that: (1) the '055 and '241 patents"cannot be asserted" because they were reissued as the '591 and '563 patents ; (2) Kenall "is not entitled to damages" for infringement of the reissued patents before…”
Plastic Container Corp. v. Cont'l Plastics of Oklahoma, Inc., 607 F.2d 885 (10th Cir. 1979).
· cites it 4× “valid because Plástic did not discharge “the heavy duty of complete good faith, and full and open disclosure of all pertinent and material facts to the Patent Examiner during the prosecution of the reissue application”; and (3) even assuming, arguendo, that the Hall Reissue is…”
Quantum Corp. v. Rodime, Plc, 65 F.3d 1577 (Fed. Cir. 1995).
· cites it 3× “1 from collecting damages for activities occurring prior to the issuance of the reissue patent, had to decide whether the patentee had made a substantive change to the claims during reissue. In this regard, the district court stated, and we affirmed, that: Seattle Box, in…”
R + L Carriers, Inc. v. Qualcomm, Inc., 801 F.3d 1346 (Fed. Cir. 2015).
· cites it 5× “” 35 U.S.C. § 252 (2012) (stating that a reissued patent shall have the same effect as the original patent “in so far as the claims of the original and reissued patents are substantially identical ” (emphasis added)); see 35 U.”
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