A sharply split federal appeals court reversed course and reinstated a $29.4 million win for Marine Polymer Technologies in its wound dressing patent spat with HemCon Medical Technologies.
The U.S. Court of Appeals for the Federal Circuit, in an en banc decision joined in full by 5 of 9 judges on the panel, ruled that the "intervening rights" of a company accused of patent infringement are only valid when patent claim language is changed during re-examination.
The decision reverses an earlier Federal Circuit ruling that said intervening rights apply when a patent claim change is merely argued, not just when the actual claim language is altered. The doctrine of intervening rights is designed to protect companies from patent infringement accusations over patents that are altered from their original claims.
Marine Polymer Technologies won a motion for the en banc hearing, after HemCon won its Sept. 2011 appeal of a U.S. District Court for New Hampshire decision that it infringed a Marine Polymer Technologies Inc. patent for silver-coated wound dressings.
That decision vacated a $29.4 million judgment against HemCon and a ruling that barred it from making the allegedly infringing products (the appeals court later stayed the verdict pending the outcome of HemCon’s appeal).
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