QUESTION
I have a patent application that lapsed, it¿s now been reinstated, is there any infringement to sue during the laps period?
Asked on Jun 29th, 2012 on Intellectual Property - Alabama
More details to this question:
I have a patent application that lapsed, it¿s now been reinstated, and I¿m ready to sue someone that copied the patent prior to laps, during the laps and after the laps. The patent has since been granted. The person knew that the product had a patent application pending and was warned on a number of occasions not to infringe. The person did not apply for a ¿freedom to operate¿ during the lapsed period, is there any infringement to sue during the laps period.
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Intervening rights in reinstated patents are provided by 35 U.S.C. 41(c)(2) which is reproduced in MPEP § 2501. No patent, the term of which has been maintained as a result of the acceptance of a late payment of a maintenance fee, shall abridge or affect the right of any person or his or her successors in business who made, purchased, imported, or used after the 6-month grace period but prior to the acceptance of the late maintenance fee anything protected by the patent, to continue the use or importation of, or to sell to others to be used or sold, the specific things made, purchased, imported, or used.
Answered on Jun 29th, 2012 at 5:04 AM