MPEP § 2821 — MPEP § 2821
Current through: 2022-07-01

2821-Multiple Post-Patent Office Proceedings 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2800 

 Section 2821 
 

 
 
 
 
 
 2821 Multiple Post-Patent Office Proceedings [R-07.2015]

 A supplemental examination proceeding must conclude within
 three months from the filing date of the request. As a general rule, the Office will not
 merge a supplemental examination proceeding with any other supplemental examination
 proceeding. The Office, however, reserves its option to merge/consolidate supplemental
 examination proceedings as circumstances arise. The Office, likewise, does not anticipate
 that a supplemental examination proceeding or ex parte reexamination
 proceeding resulting from a supplemental examination proceeding will be merged with any
 other type of Office proceeding. The Office similarly reserves its option to merge
 reexamination proceedings that are ordered as a result of supplemental examination
 proceedings as circumstances arise. In such circumstances, filing a petition to merge is
 not necessary, since the Office will generally make a decision sua
 sponte whether to merge.
 

 If multiple post-patent proceedings are simultaneously filed,
 any determination of which proceedings to initiate, and the order in which to initiate
 them, will be made on a case-by-case basis. 
 

 If the patent owner files a request for supplemental
 examination that is in compliance with 35 U.S.C. 257 and all applicable rules,
 the Office is required under 35 U.S.C. 257(a) to conduct the
 examination and conclude the proceeding within three months from the filing date of the
 request. Any reexamination proceeding resulting from the supplemental examination
 proceeding must, in accordance with 35 U.S.C. 257(b) , be conducted
 
 "according to the procedures established by chapter
 30,"
 
 
 which govern ex parte reexamination. If
 reexamination is ordered, the Office is required to proceed with the reexamination.
 35 U.S.C.
 304 requires the Office to resolve any substantial new question of
 patentability determined to be raised: 
 

 
 If... the Director finds that a substantial new question
 of patentability affecting any claim of a patent is raised, the determination will
 include an order for reexamination of the patent for resolution of the
 question (emphasis added). 
 

 
 In addition, 35 U.S.C. 305 expressly provides that,
 after the order (and after the time period set for filing a patent owner statement under
 35 U.S.C.
 304 , which is excluded by 35 U.S.C.
 257(b) ), 
 "reexamination will be
 conducted."
 
 
 Therefore, once reexamination is ordered, the Office is
 required by statute to conduct the reexamination. Further, 35 U.S.C. 305 
 requires that an ex parte reexamination proceeding
 
 "be conducted with special dispatch within the
 Office."
 
 
 See also, Ethicon v. Quigg, 849 F.2d
 1422, 7 USPQ2d 1152 (Fed. Cir. 1988). The Office, however, reserves its option, pursuant to
 35 U.S.C.
 315(d) or 35 U.S.C. 325(d) , to determine the
 manner in which a reexamination proceeding ordered under 35 U.S.C.
 257 may proceed, including providing for stay, transfer,
 consolidation or termination, when there is a copending inter partes 
 review, post grant review, or covered business method review. The patent owner may wish to
 consider the provisions of 35 U.S.C. 257(c)(1) and
 35 U.S.C.
 257(c)(2) on the effectiveness of any supplemental examination on
 already pending litigation when determining whether and when to file a request for
 supplemental examination.
 

 See MPEP § 2283 for information on mergers
 involving an ex parte reexamination proceeding.
 

 See the Trial Practice Guide for information involving
 concurrent trials. 
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 2801-Introduction 

 2802-Supplemental Examination 

 2803-Persons Who May File a Request for Supplemental Examination 
 2803.01-Inquiries from Persons Other Than the Patent Owner 

 2803.02-Public Access 

 
 

 2804-Representative of Patent Owner 
 2804.01-Withdrawal of Attorney or Agent 

 
 

 2805-Correspondence with Patent Owner; Patent Owner Address 

 2806-How to File Papers in a Supplemental Examination Proceeding and in Any Resulting Ex Parte Reexamination Proceeding 

 2807-Format of Papers Filed in a Supplemental Examination Proceeding 

 2808-Time for Requesting Supplemental Examination 

 2809-Items of Information 
 2809.01-Information Relating to the Correction of Factual Information 

 
 

 2810-Fees Due on Filing a Supplemental Examination Request 
 2810.01-Document Size Fees 

 
 

 2811-Content of Request for Supplemental Examination 
 2811.01 -Detailed Explanation of the Relevance and Manner of Applying Each Item of Information 

 2811.02 -Optional Content 

 
 

 2812-Initial Processing of a Request for Supplemental Examination 
 2812.01 -Filing Date of the Request 

 2812.02-Noncompliant Request for Supplemental Examination 

 2812.03 -Corrected Request 

 2812.04 -Termination Due to Defective/Improper Request or Corrected Request 

 
 

 2813-Handling of Papers, Other Than a Request, in a Supplemental Examination Proceeding 
 2813.01 -Amendments 

 
 

 2814-Interviews Are Prohibited 

 2815-Time for Deciding Request 

 2816-Determination on the Request 
 2816.01 -Claims Considered in Making the Determination 

 2816.02 -Criteria for Making the Determination 

 2816.03 -Content of the Determination 

 2816.04 -Effect of the Determination 

 
 

 2817-Conclusion of Supplemental Examination 
 2817.01 -Processing and Electronic Issuance of Supplemental Examination Certificate 

 
 

 2818-Procedure after Conclusion of Supplemental Examination 
 2818.01 -After Determination Finding a Substantial New Question of Patentability 

 2818.02 -After Determination Finding No Substantial New Question of Patentability 

 
 

 2819-Discovery of Possible Material Fraud 

 2820-Submission of Notification of Other Prior or Concurrent Post-Patent Office Proceedings 

 2821-Multiple Post-Patent Office Proceedings 

 2822-Assignment of the Supplemental Examination Proceeding 

 2823-Differences Between an Ex Parte Reexamination Proceeding Ordered Pursuant to 35 U.S.C. 257 and an Ex Parte Reexamination Proceeding
 Ordered Pursuant to 35 U.S.C. 302 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:50:50