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— Reducing  Infringement Liability Via
         Intervening Rights (PART I)–

As reported last week, USPTO reexamination of Amazon’s “1-click patent” concluded with the amendment of the broadest claims. In response, many Internet news sources, and IP blogs decried the reexamination process and the USPTO as a failed system. Yet, lost in the hysteria and naiveté is a very fundamental concept of post-grant proceedings at the USPTO, namely, the doctrine of intervening rights.

USPTO statistics very clearly bear out that complete cancellation of ALL patent claims via ex parte reexamination, such as was conducted of Amazon’s 1-click patent, is the exceptional case, not the rule.  Indeed, as of December 2009, only 11% of ex parte reexaminations conclude with all claims cancelled. Yet, roughly 600 requests for ex parte reexamination have been filed every year since the inception of the Central Reexamination Unit (CRU). With only 11% of patents having all claims cancelled over a 20+ year period, clearly the strategy behind ex parte reexamination requests is something other than outright cancellation.[1]

Certainly, a third party requestor would be pleased with the cancellation of all claims of a patent in reexamination, however
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