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In re Construction Equipment

By Dervis Magistre

If the Federal Circuit affirms a lower court verdict holding a patent not invalid over a prior art reference, may the losing party ask the Patent Office to invalidate that patent via re-examination over the same prior art reference? In the case of In re Construction Equipment, 665 F.3d 1254 (Fed. Cir. 2011), the Federal Circuit answered yes, raising important issues bearing on the scope of the re-examination statute, the finality of judgments, and the relationship between the Patent Office and the federal judiciary under the separation of powers doctrine of the Constitution.

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