MPEP § 2240 — MPEP § 2240
Current through: 2022-07-01

2240-Decision on Request Filed under 35 U.S.C. 302 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2240 
 

 
 
 
 
 
 2240 Decision on Request Filed under 35 U.S.C. 302 [R-07.2015]

 
 35 U.S.C. 303 
 Determination of issue by Director. 

 
 (a) Within three months following the filing of a request for
 reexamination under the provisions of section 302 , the Director will
 determine whether a substantial new question of patentability affecting any claim
 of the patent concerned is raised by the request, with or without consideration of
 other patents or printed publications. On his own initiative, and any time, the
 Director may determine whether a substantial new question of patentability is
 raised by patents and publications discovered by him or cited under the provisions
 of section 301 or 302 of this title. The
 existence of a substantial new question of patentability is not precluded by the
 fact that a patent or printed publication was previously cited by or to the Office
 or considered by the Office.
 

 (b) A record of the Director’s determination under subsection (a) of
 this section will be placed in the official file of the patent, and a copy
 promptly will be given or mailed to the owner of record of the patent and to the
 person requesting reexamination, if any.
 

 (c) A determination by the Director pursuant to subsection (a) of
 this section that no substantial new question of patentability has been raised
 will be final and nonappealable. Upon such a determination, the Director may
 refund a portion of the reexamination fee required under section
 302 .
 

 
 

 
 37 CFR 1.515 Determination of the request for ex parte reexamination. 

 
 (a) Within three months following the filing date of a request for an
 ex parte reexamination, an examiner will consider the
 request and determine whether or not a substantial new question of patentability
 affecting any claim of the patent is raised by the request and the prior art cited
 therein, with or without consideration of other patents or printed publications. A
 statement and any accompanying information submitted pursuant to §
 1.501(a)(2) will not be considered by the examiner when
 making a determination on the request. The examiner’s determination will be based
 on the claims in effect at the time of the determination, will become a part of
 the official file of the patent, and will be given or mailed to the patent owner
 at the address provided for in § 1.33(c) and to the person
 requesting reexamination.
 

 (b) Where no substantial new question of patentability has been
 found, a refund of a portion of the fee for requesting ex parte 
 reexamination will be made to the requester in accordance with §
 1.26(c) .
 

 (c) The requester may seek review by a petition to the Director under
 §
 1.181 within one month of the mailing date of the examiner’s
 determination refusing ex parte reexamination. Any such
 petition must comply with § 1.181(b) . If no petition is
 timely filed or if the decision on petition affirms that no substantial new
 question of patentability has been raised, the determination shall be final and
 nonappealable.
 

 
 

 Before making a determination on the request for reexamination filed under
 35 U.S.C.
 302 , a litigation search from the Technical Support Staff (TSS) of
 the Central Reexamination Unit (CRU) or the Scientific and Technical Information Center
 (STIC) must be done to check if the patent has been, or is, involved in litigation. The
 “Litigation Review” box on the reexamination IFW file jacket form (RXFILJKT) should be
 completed to indicate that the review was conducted and the results thereof. A copy of the
 litigation search and the reexamination file jacket form are scanned into the IFW
 reexamination file history. In the rare instance where the record of the reexamination
 proceeding or the litigation search indicates that additional information is desirable,
 guidance as to making an additional litigation search may be obtained from the library of
 the Office of the Solicitor. If the patent is or was involved in litigation, and a paper
 referring to the court proceeding has been filed, reference to the paper by number should
 be made in the “Litigation Review” box on the reexamination IFW file jacket form as, for
 example, “litigation; see paper filed 7-14-2005.” If a litigation records search is already
 noted on the file, the examiner need not repeat or update it before making a determination
 on the request.
 

 If litigation has concluded or is taking place in the patent on which a
 request for reexamination has been filed, the request must be promptly brought to the
 attention of the Central Reexamination Unit (CRU) Supervisory Patent Reexamination
 Specialist (SPRS), who should review the decision on the request and any examiner’s action
 to ensure that it conforms to the current Office litigation policy and guidelines. See
 MPEP §
 2286 .
 

 35 U.S.C.
 303 requires that within 3 months following the filing of a request
 for reexamination filed under 35 U.S.C. 302 , the Director of the
 USPTO will determine whether or not the request raises a “substantial new question of
 patentability” affecting any claim of the patent of which reexamination is desired. See
 also MPEP §
 2241 . Such a determination may be made with or without
 consideration of other patents or printed publications in addition to those cited in the
 request. No input from the patent owner is considered prior to the determination, unless
 the patent owner filed the request. See Patlex Corp. v. Mossinghoff, 771
 F.2d 480, 226 USPQ 985 (Fed. Cir. 1985).
 

 The patent claims in effect at the time of the determination will be the
 basis for deciding whether a substantial new question of patentability has been raised.
 37 CFR
 1.515(a) . Amendments which (1) have been presented with the request
 if filed under 35 U.S.C.
 302 by the patent owner, (2) have been filed in a pending
 reexamination proceeding in which the certificate has not been issued, or (3) have been
 submitted in a reissue application on which no reissue patent has been issued, will not be
 considered or commented upon when deciding requests.
 

 The decision on the request for reexamination filed under
 35 U.S.C.
 302 has as its object either the granting or denial of an order for
 reexamination. This decision is based on whether or not “a substantial new question of
 patentability” is found. A determination as to patentability/unpatentability of the claims
 is not made in the decision on the request; rather, this determination will be made during
 the examination stage of the reexamination proceedings if reexamination is ordered.
 Accordingly, no prima facie case of unpatentability need be found to
 grant an order for reexamination. If a decision to deny an order for reexamination is made,
 the requester may seek review by a petition under 37 CFR 1.181 . See 37 CFR 1.515(c) . See
 MPEP §
 2248 . It should be noted that a decision to deny the request for
 reexamination is equivalent to a final holding (subject only to a petition pursuant to
 37 CFR
 1.515(c) for review of the denial) that the request failed to raise a
 substantial new question of patentability based on the cited art (patents and printed
 publications).
 

 It is only necessary to establish that a substantial new question of
 patentability exists as to one of the patent claims in order to grant reexamination. The
 Office’s determination in both the order for reexamination and the examination stage of the
 reexamination ordered under 35 U.S.C. 304 will generally be limited
 solely to a review of the claim(s) for which reexamination was requested. If the requester
 was interested in having all of the claims reexamined, requester had the opportunity to
 include them in its request for reexamination. However, if the requester chose not to do
 so, those claim(s) for which reexamination was not requested will generally not be
 reexamined by the Office. It is further noted that 35 U.S.C. 302 requires that “[t]he
 request must set forth the pertinency and manner of applying cited prior art to every claim
 for which reexamination is requested.” If the requester fails to apply the art to certain
 claims, then the requester is not statutorily entitled to reexamination of such claims. If
 a requester chooses not to request reexamination for a claim, and thus fails to set forth
 the pertinency and manner of applying the cited art to that claim as required by
 37 CFR
 1.510(b) , that claim will generally not be reexamined. The decision
 to reexamine any claim for which reexamination has not been requested under
 35 U.S.C.
 302 lies within the sole discretion of the Office, to be exercised
 based on the individual facts and situation of each individual case. If the Office chooses
 to reexamine any claim for which reexamination has not been requested under
 35 U.S.C.
 302 , it is permitted to do so. In addition, the Office may always
 initiate a reexamination on its own initiative of the non-requested claim
 ( 35 U.S.C.
 303(a) ). See Sony Computer Entertainment America Inc. v.
 Dudas, 85 USPQ2d 1594 (E.D. Va 2006). It is to be noted that if a request
 fails to set forth the pertinency and manner of applying the cited art to any claim for
 which reexamination is requested as required by 37 CFR 1.510(b) , a filing date will not
 be awarded to the request. See MPEP § 2217 and § 2227 .
 

 One instance where reexamination was carried out only for the claims
 requested occurred in reexamination control numbers 95/000,093 and 95/000,094, where
 reexamination was requested for patent claims which were being litigated, but not for
 claims which were not being litigated. In that instance, the entirety of the reexamination
 was limited to the claims for which reexamination was requested, and which were also being
 litigated. The Office’s authority to carry out reexamination only for the claims for which
 reexamination was requested in reexamination control numbers 95/000,093 and 95/000,094 was
 confirmed by the court in Sony, supra. See also MPEP § 2242 for the situation where there
 was a prior final federal court decision as to the invalidity/unenforceability of some of
 the claims, as another example of non-examination of some of the patent claims in a
 reexamination proceeding.
 

 The decision on the request for reexamination should discuss all of the
 patent claims requested for reexamination. The examiner should limit the discussion of
 those claims in the order for reexamination as to whether a substantial new question of
 patentability has been raised. The examiner SHOULD NOT reject claims in the order for
 reexamination. Rather, any rejection of the claims will be made in the first Office action
 (on the patentability of the claims) that is issued after the expiration of the time for
 submitting any patent owner statement and requester reply that follow the examiner’s
 order.
 

 A patent owner claim scope statement and any accompanying
 information submitted pursuant to 37 CFR 1.501(a)(2) will not be considered by the examiner when making the
 determination of whether to order ex parte reexamination
 under 35 U.S.C.
 304 . This is so, because 35 U.S.C.
 301(d) provides that a written statement submitted pursuant to
 35 U.S.C.
 301(a)(2) , and additional information submitted pursuant to
 35 U.S.C.
 301(c) are not to be considered by the Office for any purpose other
 than to determine the proper meaning of a patent claim in a proceeding that is ordered
 pursuant to 35 U.S.C.
 304 . In making the determination of whether to order reexamination,
 the Office will determine the proper meaning of the patent claims by giving the claims
 their broadest reasonable interpretation consistent with the specification (see In
 re Yamamoto, 740 F.2d 1569, 222 USPQ 934 (Fed. Cir. 1984)), except in the case
 of an expired patent (in a reexamination involving claims of an expired patent, claim
 construction is pursuant to the principle set forth by the court in Phillips v.
 AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) (words
 of a claim “are generally given their ordinary and customary meaning” as understood by a
 person of ordinary skill in the art in question at the time of the invention, see 
 Ex parte Papst-Motoren, 1 USPQ2d 1655 (Bd. Pat. App. & Inter. 1986)). If
 reexamination is ordered, the patent owner statement, if applicable, and any accompanying
 information submitted pursuant to 37 CFR 1.501(a)(2) will be considered
 during the examination stage to the fullest extent possible when determining the scope of
 any claims of the patent which are subject to reexamination.
 

 The examiner should indicate, insofar as possible, his or her initial
 position on all the issues identified in the request filed under 35 U.S.C. 302 or by
 the requester so that comment thereon may be received in the patent owner’s statement and
 in the requester’s reply.
 

 The Director of the USPTO has the authority to order reexamination only
 for a request which raises a substantial new question of patentability. The substantial new
 question of patentability requirement protects patentees from having to respond to, or
 participate in unjustified reexaminations. Patlex Corp. v. Mossinghoff, 
 771 F.2d 480, 226 USPQ 985 (Fed. Cir. 1985).
 

 I. REQUEST FOR REEXAMINATION OF THE PATENT AFTER REISSUE OF THE PATENT Where a request for reexamination is filed on a patent after a reissue
 patent for that patent has already issued, reexamination will be denied, because the
 patent on which the request for reexamination is based has been surrendered. Should
 reexamination of the reissued patent be desired, a new request for reexamination,
 including and based on the specification and the claims of the reissue patent, must be
 filed. Where the reissue patent issues after the filing of a request for reexamination,
 see MPEP §
 2285 .
 

 II. SECOND OR SUBSEQUENT REQUEST FILED UNDER 35 U.S.C. 302 DURING
 REEXAMINATION If a second or subsequent request for ex parte 
 reexamination is filed (by any party) under 35 U.S.C. 302 while a first
 ex parte reexamination is pending, the presence of a substantial
 new question of patentability depends on the prior art (patents and printed
 publications) cited by the second or subsequent requester. If the requester includes in
 the second or subsequent request prior art which raised a substantial new question in
 the pending reexamination, reexamination should be ordered only if the prior art cited
 raises a substantial new question of patentability which is different from that raised
 in the pending reexamination proceeding. If the prior art cited raises the same
 substantial new question of patentability as that raised in the pending reexamination
 proceedings, the second or subsequent request should be denied. 
 

 Where the request raises a different substantial new question of
 patentability as to some patent claims, but not as to others, the request would be
 granted in part; see the orders issued in reexamination control number 90/007,843 and
 90/007,844.
 

 The second or subsequent request for reexamination under
 35 U.S.C.
 302 may provide information raising a substantial new question of
 patentability with respect to any new or amended claim which has been proposed under
 37 CFR
 1.530(d) in the first (or prior) pending reexamination proceeding.
 However, in order for the second or subsequent request for reexamination to be granted,
 the second or subsequent requester must independently provide a substantial new question
 of patentability which is different from that raised in the pending
 reexamination for the claims in effect at the time of the determination .
 The decision on the second or subsequent request is based on the claims in effect at the
 time of the determination ( 37 CFR 1.515(a) ). Thus, the second
 or subsequent request must be directed to the claims of the patent, as modified by any
 disclaimer, or by any reexamination certificate that has issued as of the time of the
 determination. If a “different” substantial new question of patentability is not
 provided by the second or subsequent request for the claims in effect at the time of the
 determination, the second or subsequent request for reexamination must be denied since
 the Office is only authorized by statute to grant a reexamination proceeding based on a
 substantial new question of patentability “affecting any claim of the patent.” See
 35 U.S.C.
 303 . Accordingly, there must be at least one substantial new
 question of patentability established for the existing claims in the patent in order to
 grant reexamination.
 

 Once the second or subsequent request has provided a “different”
 substantial new question of patentability based on the claims in effect at the time of
 the determination, the second or subsequent request for reexamination may also provide
 information directed to any proposed new or amended claim in the pending reexamination,
 to permit examination of the entire patent package. The information directed to a
 proposed new or amended claim in the pending reexamination is addressed during the later
 filed reexamination (where a substantial new question of patentability is raised in the
 later filed request for reexamination for the existing claims in the patent), in order
 to permit examination of the entire patent package. When a proper basis for the second
 or subsequent request for reexamination is established, it would be a waste of resources
 to prevent addressing the proposed new or amended claims, by requiring parties to wait
 until the certificate issues for the proposed new or amended claims, and only then to
 file a new reexamination request challenging the claims as revised via the certificate.
 This also prevents a patent owner from simply amending all the claims in some nominal
 fashion to preclude a subsequent reexamination request during the pendency of the
 reexamination proceeding. 
 

 In certain situations, after a grant of a second
 or subsequent request for ex parte reexamination, where (A) the
 patent owner files a petition under 37 CFR 1.182 as part of the
 statement or as the statement, and (B) it appears clear that the second or subsequent
 request was filed for purposes of harassment of the patent owner, if the petition is
 granted, prosecution on the second or subsequent reexamination would be suspended.
 Merger of such a second or subsequent request with the already pending reexamination
 proceeding(s) would unduly prolong the conclusion of the pending reexamination and be
 inconsistent with the requirement that reexamination proceeding be conducted with
 special dispatch.
 

 If the second or subsequent requester does not include the prior art
 which raised a substantial new question of patentability in the pending reexamination,
 reexamination may or may not be ordered depending on whether the different prior art
 raises a substantial new question of patentability. The second or subsequent request
 should be determined on its own merits without reference to the pending
 reexamination.
 

 For additional treatment of cases in which a first ex
 parte reexamination is pending at the time a second or subsequent request
 for ex parte reexamination is to be decided, see
 MPEP
 § 2283 .
 

 For additional treatment of cases in which either the first or
 subsequent request for reexamination, or both, is/are an inter partes 
 reexamination proceeding, see MPEP § 2640 and § 2686.01 .
 

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 2201-Introduction 

 2202-Citation of Prior Art and Written Statements 

 2203-Persons Who May Cite Prior Art or Written Statements 

 2204-Time for Filing Prior Art or Section 301 Written Statements 

 2205-Content of Prior Art or Section 301 Written Statements 

 2206-Submission and Handling of Prior Art or Section 301 Written Statements 

 2207-Entry of Court Decision in Patent File 

 2208-Service of Prior Art or Section 301 Written Statements on Patent Owner 

 2209-Ex Parte Reexamination 

 2210-Request for Ex Parte Reexamination under 35 U.S.C. 302 

 2211-Time for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2212-Persons Who May File a Request for Ex Parte Reexamination under 35 U.S.C. 302 
 2212.01-Inquiries from Persons Other Than the Patent Owner 

 
 

 2213-Representative of Requester 

 2214-Content of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2215-Fee for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2216-Substantial New Question of Patentability 

 2217-Statement Applying Prior Art in a Request Filed under 35 U.S.C. 302 

 2218-Copies of Prior Art 

 2219-Copy of Printed Patent 

 2220-Certificate of Service 

 2221-Amendments Included in Request Filed under 35 U.S.C. 302 by Patent Owner 

 2222-Address of Patent Owner 

 2223-Withdrawal of Attorney or Agent 

 2224-Correspondence 

 2225-Untimely Paper Filed Prior to Order under 35 U.S.C. 304 

 2226-Initial Processing of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2227-Incomplete Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2228-[Reserved] 

 2229-Notice of Request under 35 U.S.C. 302 for Ex Parte Reexamination in Official Gazette 

 2230-Constructive Notice to Patent Owner 

 2231-Processing of Request Corrections 

 2232-Public Access to Reexaminations Filed under 35 U.S.C. 302 
 2232.01-Determining if a Reexamination Request Was Filed under 35 U.S.C. 302 for a Patent 

 
 

 2233-Processing in Central Reexamination Unit and Technology Center 

 2234-Entry of Amendments 

 2235-Record Systems 

 2236-Assignment of Reexamination 

 2237-Transfer Procedure 

 2238-Time Reporting 

 2239-Reexamination Ordered at the Director’s Initiative 

 2240-Decision on Request Filed under 35 U.S.C. 302 

 2241-Time for Deciding Request Filed under 35 U.S.C. 302 

 2242-Criteria for Deciding Request Filed under 35 U.S.C. 302 

 2243-Claims Considered in Deciding Request Filed under 35 U.S.C. 302 

 2244-Prior Art on Which the Determination Is Based in Requests Filed under 35 U.S.C. 302 

 2245-Processing of Decision 

 2246-Decision Ordering Reexamination under 35 U.S.C. 304 

 2247-Decision under 35 U.S.C. 303 on Request for Reexamination filed Under 35 U.S.C. 302, Request Denied 
 2247.01-Examples of Decisions on Request for Reexamination 

 
 

 2248-Petition From Denial of Request Filed Under 35 U.S.C. 302 

 2249-Patent Owner’s Statement in Reexaminations Filed Under 35 U.S.C. 302 

 2250-Amendment by Patent Owner 
 2250.01-Correction of Patent Drawings 

 2250.02-Correction of Inventorship 

 2250.03-Fees for Adding Claims and for Filing a Petition 

 
 

 2251-Reply by Third Party Requester 

 2252-Consideration of Statement and Reply 

 2253-Consideration by Examiner 

 2254-Conduct of Ex Parte Reexamination Proceedings 

 2255-Who Reexamines 

 2256-Prior Art Patents and Printed Publications Reviewed by Examiner in Reexamination 

 2257-Listing of Prior Art 

 2258-Scope of Ex Parte Reexamination 
 2258.01-Use of Previously Cited/Considered Art in Rejections 

 2258.02-Claiming Foreign Priority and Domestic Benefit in Reexamination 

 
 

 2259-Res Judicata and Collateral Estoppel in Reexamination Proceedings 

 2260-Office Actions 
 2260.01-Dependent Claims 

 
 

 2261-Special Status for Action 

 2262-Form and Content of Office Action 

 2263-Time for Response 

 2264-Mailing of Office Action 

 2265-Extension of Time 

 2266-Responses 
 2266.01-Submission Not Fully Responsive to Non-Final Office Action 

 2266.02-Examiner Issues Notice of Defective Paper in Ex Parte Reexamination 

 2266.03-Service of Papers 

 
 

 2267-Handling of Inappropriate or Untimely Filed Papers 

 2268-Petition for Entry of Late Papers for Revival of Reexamination Proceeding 

 2269-Reconsideration 

 2270-Clerical Handling 

 2271-Final Action 
 2271.01-Panel Review 

 
 

 2272-After Final Practice 

 2273-Appeal in Ex Parte Reexamination 

 2274-Appeal Brief 

 2275-Examiner’s Answer 

 2276-Oral Hearing 

 2277-Board Decision 

 2278-Action Following Decision 

 2279-Appeal to Courts 

 2280-Information Material to Patentability in Reexamination Proceeding Filed under 35 U.S.C. 302 

 2281-Interviews in Ex Parte Reexamination Proceedings 

 2282-Notification of Existence of Prior or Concurrent Proceedings and Decisions Thereon 

 2283-Multiple Copending Ex Parte Reexamination Proceedings 

 2284-Copending Ex Parte Reexamination and Interference Proceedings 

 2285-Copending Ex Parte Reexamination and Reissue Proceedings 

 2286-Ex Parte Reexamination and Litigation Proceedings 
 2286.01-Reexamination and Inter Partes Review Proceedings, Post-Grant Review, and Covered Business Method Patent Review 

 
 

 2287-Conclusion of Ex Parte Reexamination Proceeding 
 2287.01-Examiner Consideration of Submissions After a NIRC 

 
 

 2288-Issuance of Ex Parte Reexamination Certificate 

 2289-Reexamination Review 

 2290-Format of Ex Parte Reexamination Certificate 

 2291-Notice of Ex Parte Reexamination Certificate Issuance in Official Gazette 

 2292-Distribution of Certificate 

 2293-Intervening Rights 

 2294-Concluded Reexamination Proceedings 

 2295-Reexamination of a Reexamination 

 2296-USPTO Forms To Be Used In Ex Parte Reexamination 

 

 

 
 

 
 
 

 
 

 

 
 
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