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Earlier this week, the United States Court of Appeals for the Federal Circuit ("CAFC") voided a patent holder's big win at trial (permanent injunction along with its $29 million damage award) after the patent holder surrendered during reexamination a number of claims even though the claims surrendered during reexamination were not the claims successfully asserted in the underlying litigation. The CAFC found that the surrender of the dependent claims had the "effect" of amending the scope of the independent claims such that the doctrine of intervening rights would apply even though the language of the litigated independent claims never changed as a result of the reexamination and the independent claims that formed the basis of the successful judgment below reissued without change. Marine Polymer Technologies, Inc. v. HemCon, Inc. (Fed. Cir. Sept. 26, 2011).

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