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hypothetical question. Let's assume someone else's patent has expired due to non-payment, and we release a product that that would potentially have infringed on it.
Three months later they see our product has gone live and file a petition to get the maintenance fee renewed and it gets granted.
Where does that leave us legally? When our product came out the patent was expired/invalid, and they dug it out of the grave - would we be legally safe or are we infringing once the patent fees are paid?
This is covered in the USPTO MPEP:
2591 Intervening Rights in Reinstated Patents
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. A court before which such matter is in question may provide for the continued manufacture, use, importation, or sale of the thing made, purchased, imported, or used as specified, or for the manufacture, use, importation, or sale of which substantial preparation was made after the 6-month grace period but before the acceptance of the late maintenance fee, and it may also provide for the continued practice of any process, practiced, or for the practice of which substantial preparation was made, after the 6-month grace period but prior to the acceptance of the late maintenance fee, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced after the 6-month grace period but before the acceptance of the late maintenance fee.
