Whether “intervening rights . . . apply with respect to claims that have not been amended or newly introduced in [a] reexamination proceeding.”
“[I]ntervening rights do not apply to claims that have not been amended and are not new. . . . To be sure, patent applicants’ actions and arguments during prosecution, including prosecution in a reexamination proceeding, can affect the proper interpretation and effective scope of their claims. But in rejecting HemCon’s request for intervening rights, we are not here interpreting claims. Rather, we are interpreting a statute that provides for intervening rights following reexamination only as to ‘amended or new’ claims.”
