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Optimizing the Chances for a Successful Intervening Rights Defense

By William F. Heinze

In "Intervening Rights and the Possibility for Last-Minute Heroics," Michael J. Sacksteder suggests the following activities for optimizing the chances for a successful intervening rights defense:

• Track the progress of reexaminations involving patents already asserted (or likely to be asserted) to determine the impact of amendments to the original claims.
• Consider the inventory of ?specific things? in inventory at the time a reexamination certificate is likely to issue in order to maximize the benefit of a finding of absolute intervening rights.
• Obtain and rely on an opinion of counsel based on prior art asserted in reexamination.
• Scrupulously avoid willful infringement (and its indicia)
• Consider and document the timing of preparations, contracts, etc., in order to coincide with reliance on opinion of counsel.

Full post as published by I/P Updates on February 28, 2008 (boomark / email).