MPEP § 2288 — MPEP § 2288
Current through: 2022-07-01

2288-Issuance of Ex Parte Reexamination Certificate 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2288 
 

 
 
 
 
 
 2288 Issuance of Ex Parte Reexamination Certificate [R-08.2017]
 

 
 35 U.S.C. 307 
 Certificate of patentability, unpatentability, and claim
 cancellation. 

 
 (a) In a reexamination proceeding under this chapter, when the time
 for appeal has expired or any appeal proceeding has terminated, the Director will
 issue and publish a certificate canceling any claim of the patent finally
 determined to be unpatentable, confirming any claim of the patent determined to be
 patentable, and incorporating in the patent any proposed amended or new claim
 determined to be patentable.
 

 
 *****

 

 
 37 CFR 1.570 Issuance and publication of ex parte reexamination certificate concludes ex
 parte reexamination proceeding. 

 
 (a) To conclude an ex parte reexamination
 proceeding, the Director will issue and publish an ex parte 
 reexamination certificate in accordance with 35 U.S.C. 307 setting forth
 the results of the ex parte reexamination proceeding and the
 content of the patent following the ex parte reexamination
 proceeding.
 

 (b) An ex parte reexamination certificate will be
 issued and published in each patent in which an ex parte 
 reexamination proceeding has been ordered under § 1.525 and
 has not been merged with any inter partes reexamination
 proceeding pursuant to § 1.989(a) . Any statutory
 disclaimer filed by the patent owner will be made part of the ex
 parte reexamination certificate.
 

 (c) The ex parte reexamination certificate will be mailed on the day of its date to the
 patent owner at the address as provided for in § 1.33(c) . A copy of the ex parte reexamination certificate will also be mailed to the requester of the ex parte reexamination proceeding.
 

 (d) If an ex parte reexamination certificate has
 been issued and published which cancels all of the claims of the patent, no
 further Office proceedings will be conducted with that patent or any reissue
 applications or any reexamination requests relating thereto.
 

 (e) If the ex parte reexamination proceeding is terminated by the grant of a reissued
 patent as provided in § 1.565(d) , the reissued
 patent will constitute the ex parte reexamination certificate required by this section and
 35 U.S.C.
 307 .
 

 (f) A notice of the issuance of each ex parte reexamination certificate under this section will be published in the
 Official Gazette on its date of issuance.
 

 
 

 Since abandonment is not possible in a reexamination proceeding, a
 reexamination certificate will be issued and published at the conclusion of the proceeding
 in each patent in which a reexamination proceeding has been ordered under 37 CFR 1.525 except
 where the reexamination has been concluded by vacating the reexamination proceeding or by
 the grant of a reissue patent on the same patent in which case the reissue patent also
 serves as the reexamination certificate.
 

 Where the reexamination is to be concluded for a failure to timely respond
 to an Office action, see MPEP § 2266 .
 

 The reexamination certificate will set forth the results of the proceeding
 and the content of the patent following the reexamination proceeding. The certificate
 will:
 

 
 (A) cancel any patent claims determined to be unpatentable;

 (B) confirm any patent claims determined to be patentable;

 (C) incorporate into the patent any amended or new claims determined to
 be patentable;
 

 (D) make any changes in the description approved during
 reexamination;
 

 (E) include any statutory disclaimer or terminal disclaimer filed by the
 patent owner;
 

 (F) identify unamended claims which were held invalid on final holding
 by another forum on any grounds;
 

 (G) identify any patent claims not reexamined;

 (H) be mailed on the day it is dated to the patent owner at the address
 provided for in 37
 CFR 1.33(c) and a copy will be mailed to the third party
 requester; and
 

 (I) identify patent claims, dependent on amended claims, determined to
 be patentable.
 

 
 If a certificate issues and publishes which cancels all of the claims of
 the patent, no further Office proceedings will be conducted with regard to that patent or
 any reissue application or reexamination request directed thereto. However, in an extremely
 rare situation in which a reissue application is copending with a reexamination proceeding
 in which a reexamination certificate subsequently issues cancelling all claims of the
 patent, the patent owner may file a petition under 37 CFR 1.183 requesting waiver of the
 provisions of 37 CFR
 1.570(d) , to address claims that were pending in the reissue
 application prior to the issuance of the certificate. Any such petition must be accompanied
 by a paper cancelling any claim within the scope of the claims canceled by the certificate
 and pointing out why the claims remaining in the reissue application can be patentable,
 despite the cancellation of all the patent claims by certificate, i.e., why the remaining
 claims are patentable over the cancelled claims. Such a paper will be available to the
 examiner, should the petition be granted. See 37 CFR 1.570(d) . See also
 MPEP §
 1449.01 , subsection I.A. If a reexamination proceeding is
 concluded by the grant of a reissued patent as provided for in 37 CFR 1.565(b) , the
 reissued patent will constitute the reexamination certificate required by 35 U.S.C. 307 and
 this section. See 37 CFR
 1.570(e) .
 

 A notice of the issuance of each reexamination certificate will be
 published in the Official Gazette on its date of issuance in a format
 similar to that used for reissue patents. See 37 CFR 1.570(f) and
 MPEP
 § 2291 .
 

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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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 Last Modified: 
 
 03/09/2026 20:49:35