35 U.S.C. 316 Certificate of patentability, unpatentability and claim cancellation.
- (b) AMENDED OR NEW CLAIM.— 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 on the right of any person who made, purchased, or used within the United States, or imported into the United States, anything patented by such proposed amended or new claim, or who made substantial preparation therefor, prior to issuance of a certificate under the provisions of subsection (a) of this section.
The situation of intervening rights resulting from inter partes reexamination proceedings parallels the intervening rights situation resulting from reissue patents or from ex parte reexamination proceedings. The rights detailed in 35 U.S.C. 252 for reissue apply equally in reexamination and reissue situations. See Fortel Corp. v. Phone-Mate, Inc., 825 F.2d 1577, 3 USPQ2d 1771 (Fed. Cir. 1987); Kaufman Co., Inc. v. Lantech, Inc., 807 F.2d 970, 1 USPQ2d 1202 (Fed. Cir. 1986); Tennant Co. v. Hako Minuteman, Inc., 4 USPQ2d 1167 (N.D. Ill. 1987); and Key Mfg. Group, Inc. v. Microdot, Inc., 679 F.Supp. 648, 4 USPQ2d 1687 (E.D. Mich. 1987).