MPEP § 2246 — MPEP § 2246
Current through: 2022-07-01

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

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2246 
 

 
 
 
 
 
 2246 Decision Ordering Reexamination under 35 U.S.C. 304 [R-01.2024]

 
 35 U.S.C. 304 
 Reexamination order by Director. 

 If, in a determination made under the provisions of subsection 303(a) ,
 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. The patent owner will be given a reasonable
 period, not less than two months from the date a copy of the determination is given or
 mailed to him, within which he may file a statement on such question, including any
 amendment to his patent and new claim or claims he may wish to propose, for
 consideration in the reexamination. If the patent owner files such a statement, he
 promptly will serve a copy of it on the person who has requested reexamination under the
 provisions of section
 302 . Within a period of two months from the date of service, that
 person may file and have considered in the reexamination a reply to any statement filed
 by the patent owner. That person promptly will serve on the patent owner a copy of any
 reply filed.
 

 

 
 37 CFR 1.525 Order for ex parte reexamination. 

 
 (a) If a substantial new question of patentability is found pursuant
 to §
 1.515 or § 1.520 , the determination
 will include an order for ex parte reexamination of the patent
 for resolution of the question. If the order for ex parte 
 reexamination resulted from a petition pursuant to § 1.515(c) ,
 the ex parte reexamination will ordinarily be conducted by an
 examiner other than the examiner responsible for the initial determination under
 §
 1.515(a) .
 

 (b) The notice published in the Official Gazette 
 under § 1.11(c) will be considered to be constructive notice and
 ex parte reexamination will proceed.
 

 
 

 If a request for reexamination is granted, the examiner’s decision
 granting the request will conclude that a substantial new question of patentability has
 been raised by (A) identifying all claims and issues, (B) identifying the patents and/or
 printed publications relied on, and (C) providing a brief statement of the rationale
 supporting each new question. 
 

 In the examiner’s decision, the examiner must identify at least one
 substantial new question of patentability and explain how the prior art patents and/or
 printed publications raise such a question. The examiner should indicate, insofar as
 possible, their initial position on all the issues identified in the request or by the
 requester (without rejecting claims) so that comment thereon may be received in the patent
 owner’s statement and in the requester’s reply. The prior art relied on should be listed on
 a form PTO-892 if it is not already listed on a form PTO/SB/08 or PTO/SB/42 (or on a form
 having a format equivalent to one of these forms) by the requester. A copy of a reference
 should be supplied only where it has not been previously supplied to the patent owner and
 requester.
 

 As to each substantial new question of patentability identified in the
 decision, the decision should point out:
 

 
 (A) The prior art patents and printed publications which add some new
 teaching as to at least one claim;
 

 (B) What that new teaching is;

 (C) The claims that the new teaching is directed to;

 (D) That the new teaching was not previously considered nor addressed in
 the earlier concluded examination or review of the patent or a final holding of
 invalidity by a federal court, and was not raised to or by the Office in a pending
 reexamination or supplemental examination of the patent;
 

 (E) That the new teaching is such that a reasonable examiner would
 consider the new teaching to be important in deciding to allow the claim being
 considered; and
 

 (F) Where the question is raised, or where it is not clear that a patent
 or printed publication pre-dates the patent claims, a discussion should be provided
 as to why the patent or printed publication is deemed to be available against the
 patent claims.
 

 
 See MPEP §
 2247.01 for an example of a decision granting a request for
 reexamination.
 

 In a simple case, the examiner may adopt the reasons provided by the
 requester in the discussion of the substantial new question of patentability. 
 

 The example in MPEP § 2247.01 is drafted for the case
 where the “request indicates that Requester considers that Claims 1-3 are unpatentable over
 Smith taken with Jones.” There may, however, be a request that does not
 indicate the claims to be unpatentable over the art, but rather
 that a substantial new question of patentability is raised by the art. This may occur, for
 example, in a patent owner request filed to address prior art that raises a substantial new
 question of patentability but the claims are still patentable over the art.
 In such an instance, the decision on the request
 should not state that the “request indicates that Requester considers that Claims 1-3 are
 unpatentable over Smith taken with Jones.” Rather, it should state that the “request
 indicates that Requester considers that a substantial new question of patentability is
 raised as to Claims 1-3 based on Smith taken with Jones.”
 

 In the decision on the request, the examiner will not decide, and no
 statement should be made as to, whether the claims are rejected over the patents and
 printed publications. The examiner does not decide the question of
 patentability of the claims in the decision on the request. The examiner only decides
 whether there is a substantial new question of patentability to grant the request to order
 reexamination.
 

 If arguments are raised by a requester (third party or patent owner) as to
 grounds not based on the patents or printed publications, such as those based on public use
 or sale, or abandonment under 35 U.S.C. 102(c) for reexamination
 proceedings examined under the first-to-invent prior art regime, the examiner should note
 that such grounds are improper for reexamination under 35 U.S.C. 302 and are not considered or
 commented upon. See 37
 CFR 1.552(c) .
 

 The decision granting the request must set forth the time periods for the
 patent owner and requester to file their statement and any reply thereto.
 

 Form paragraph 22.01 should be used at the beginning of each decision
 letter.
 

 ¶ 22.01 New Question of Patentability

 A substantial new question of
 patentability affecting claim [1] of United States Patent Number
 [2 ] is raised by the request for ex parte 
 reexamination.
 

 Extensions of time under
 37 CFR
 1.136(a) will not be permitted in these proceedings because the
 provisions of 37 CFR
 1.136 apply only to “an applicant” and not to parties in a
 reexamination proceeding. Additionally, 35 U.S.C. 305 requires that ex
 parte reexamination proceedings “will be conducted with special dispatch”
 ( 37 CFR
 1.550(a) ). Extensions of time in ex parte 
 reexamination proceedings are provided for in 37 CFR 1.550(c) .
 

 

 Form paragraph 22.73 should be used at the end of each decision
 letter.
 

 ¶ 22.73 Correspondence and Inquiry as to Office Actions

 All correspondence
 relating to this ex parte reexamination proceeding should be
 directed:
 

 Electronically: Registered users may submit via the electronic filing
 system Patent Center, at https://patentcenter.uspto.gov .
 

 By Mail to: Mail Stop Ex
 Parte Reexam
 

 Central Reexamination
 Unit
 

 Commissioner for
 Patents
 

 United States Patent & Trademark
 Office
 

 P.O. Box 1450

 Alexandria, VA
 22313-1450
 

 By FAX to: (571)
 273-9900
 

 Central Reexamination
 Unit
 

 By hand: Customer Service
 Window
 

 Knox Building

 501 Dulany Street

 Alexandria, VA 22314

 For electronic transmissions, 37 CFR 1.8(a)(1)(i)(C) and (ii) states
 that correspondence (except for a request for reexamination and a corrected or replacement
 request for reexamination) will be considered timely filed if (a) it is transmitted via the
 USPTO patent electronic filing system in accordance with 37 CFR 1.6(a)(4) , and (b) includes a
 certificate of transmission for each piece of correspondence stating the date of transmission,
 which is prior to the expiration of the set period of time in the Office action.
 

 Any inquiry concerning this
 communication should be directed to [1] at telephone number
 [2] .
 

 Examiner Note:
 
 1. This form paragraph is used at
 the end of ex parte reexamination communications.
 

 2. In bracket 1, insert the name of
 the examiner having charge of the proceeding.
 

 3. In bracket 2, insert the
 examiner’s telephone number.
 
 
 
 I. PROCESS OF PREPARING THE DECISION ON THE REQUEST FILED UNDER 35 U.S.C. 302 After the reexamination file has been reviewed in the Central
 Reexamination Unit (CRU) to ensure that it is ready for examination, the reexamination
 proceeding will be assigned to an examiner.
 

 In the event the CRU Reexamination Specialist (SPRS)
 believes that another Art Unit within the CRU should examine the reexamination file, see
 MPEP §
 2237 for procedures for transferring the reexamination
 file.
 

 After the examiner receives the new reexamination file,
 the examiner will prepare for and set up a panel review conference as per
 MPEP §
 2271.01 , to discuss the issuance of a decision on the request
 for reexamination. The examiner may prepare the decision on the request for
 reexamination, and, where applicable, (where the statement has been waived by patent
 owner - see MPEP §
 2249 “Waiver of Statement Program”) the first Office action to
 accompany the decision after the conference, or may prepare the decision on the request
 for reexamination, and, where applicable, the first Office action prior to the
 conference and revise it as needed after the conference. 
 

 If the conference confirms the examiner’s preliminary
 decision to grant reexamination, the decision on the request for reexamination will be
 completed and signed by the examiner, with the two or more other conferees initialing
 the action (as “conferee”) to indicate their presence in the conference. When ready, the
 examiner’s decision will be processed and mailed. A transmittal form PTOL-465 with the
 third-party requester’s address will be completed, if a copy for mailing is not already
 available. The transmittal form PTOL-465 is used to forward copies of Office actions
 (and any references cited in the actions) to the third-party requester. Whenever an
 Office action is issued, a copy of this form will be made and attached to a copy of the
 Office action. The use of this form removes the need to retype the third-party
 requester’s address each time a mailing is required. In conjunction with the mailing,
 any appropriate processing (e.g., content entry through the Patent Data Portal, update
 scanning) is carried out by the staff of the CRU. 
 

 II. SEEKING REVIEW OF A FINDING OF A SUBSTANTIAL NEW QUESTION OF PATENTABILITY IN
 EX PARTE REEXAMINATION PROCEEDINGS UNDER 35 U.S.C. 302 A substantive determination by the Director of the USPTO to institute
 reexamination pursuant to a finding that the prior art patents or printed publications
 raise a substantial new question of patentability (SNQ) is not subject to review by the
 courts until a final agency decision in the reexamination proceeding has issued. See
 Joy Mfg. Co. v. Nat’l Mine Serv. Co., Inc., 810 F.2d 1127,
 1 USPQ2d 1627 (Fed. Cir. 1987); Heinl v. Godici, 143 F. Supp.2d 593
 (E.D.Va. 2001). Note further the decision of Patlex Corp. v. Quigg, 
 680 F. Supp. 33, 35, 6 USPQ2d 1296, 1298 (D.D.C. 1988) (the legislative scheme leaves
 the Director’s 35 U.S.C. 303 determination entirely to the Director's discretion
 and not subject to judicial review until a final agency decision on the reexamination
 proceeding has issued).
 

 A patent owner may challenge the correctness of the
 decision to grant an order for ex parte reexamination under
 35 U.S.C.
 304 on the basis that there is no SNQ by requesting
 reconsideration of the examiner's SNQ determination in a patent owner’s statement under
 37 CFR
 1.530 discussing the SNQ raised in the reexamination order for the
 examiner's consideration. See 35 U.S.C. 304 . When the examiner
 makes a rejection based in whole or in part on a reference (patent or printed
 publication) in an Office action, the patent owner may present a challenge to the
 examiner's SNQ determination by requesting reconsideration of the examiner's
 determination that the reference raises a SNQ and presenting appropriate arguments in
 the response to the Office action. See 37 CFR 1.111(b) (the patent owner's
 response to an Office action must point out the supposed errors in the examiner's action
 and must reply to every ground of objection and rejection in the Office action). By
 presenting arguments regarding the SNQ to the examiner in the early stages of the
 proceeding, the patent owner helps the Office to resolve the issues quickly. For
 example, if the patent owner timely files a statement or response, and the examiner
 agrees with the patent owner that no SNQ has been raised in the ex
 parte reexamination proceeding, then the proceeding prosecution will be
 terminated or the reexamination order will be vacated (whichever is appropriate).
 However, if the examiner determines that the SNQ is proper, further review can be
 obtained by exhausting the patent owner's rights through the reexamination proceeding
 and ultimately seeking review before the Board - along with an appeal of any rejections.
 To obtain review of the SNQ issue, patent owner must include the SNQ issue and the
 appropriate arguments in its appeal brief to the Board.
 

 In order to preserve the right to have the Board review
 the SNQ issue, a patent owner must have first requested reconsideration of the SNQ issue
 by the examiner. Accordingly, for ex parte reexamination proceedings
 ordered under 35
 U.S.C. 304 on or after June 25, 2010, the patent owner may seek a
 final agency decision from the Board on the SNQ issue only if the patent owner has first
 requested reconsideration before the examiner (e.g., in a patent owner's statement under
 37 CFR
 1.530 or in a patent owner's response under 37 CFR 1.111 ) and
 then seeks review of the examiner's SNQ determination before the Board. In its appeal
 brief, the patent owner is to clearly present the issue and arguments regarding the
 examiner's SNQ determination under a separate heading and identify the communication in
 which the patent owner first requested reconsideration before the examiner. (For
 ex parte reexamination proceedings ordered under 35 U.S.C. 304 
 prior to June 25, 2010, if the patent owner presents the SNQ issue in its appeal brief,
 the Board panel will review the procedural SNQ issue along with its review of any
 rejections in an appeal and will enter a final agency decision accordingly.) See
 MPEP §
 2274 for further discussion of the appeal process as to the
 SNQ issue.
 

 Separate from the Board's consideration of the SNQ issue,
 a patent owner may file a petition under 37 CFR 1.181(a)(3) to vacate an
 ex parte reexamination order as “ ultra vires .”
 Such petitions should be rare, and will be granted only in a situation where the USPTO
 acted in “brazen defiance” of its statutory authorization in granting the order for
 ex parte reexamination. See Heinl, 143 F. Supp.
 2d at 601-02. These types of petitions to vacate an ex parte 
 reexamination order are not decided by the Board, but are delegated to the Director of
 Central Reexamination Unit (CRU).
 

 “Appropriate circumstances” under 37 CFR 1.181(a)(3) exist to vacate
 the order granting reexamination where, for example: 
 

 
 (A) the reexamination order under 35 U.S.C. 304 is facially not
 based on prior art patents or printed publications (this does not include a
 situation where the Office has given reasons why a reference is a prior art patent
 or printed publication, and patent owner disagrees, but rather would include, for
 example, a situation where reexamination is ordered based on 35 U.S.C.
 112 , with a reference used to support a new question as to
 35 U.S.C.
 112 );
 

 (B) all claims of the patent for which reexamination was ordered were
 held to be invalid by a final decision of a federal court after all appeals;
 

 (C) reexamination was ordered for the wrong patent; or

 (D) reexamination was ordered based on a duplicate copy of the
 request.
 

 
 There is no right to petition, as an “ ultra
 vires ” action by the Office, if the finding of a SNQ is based on reasons
 other than those urged by the requester (or based on less than all the grounds urged by
 the requester). 
 

 When a petition under 37 CFR 1.181 is filed to vacate a
 reexamination order under 35 U.S.C. 304 , the third-party
 requester (where one is present in the reexamination proceeding) may file a single
 submission in opposition to the petition. Because reexamination proceedings are
 conducted with special dispatch, 35 U.S.C. 305 , any such opposition
 by the third-party requester must be filed within two weeks of the date upon which a
 copy of the original 37 CFR 1.181 petition was served on the third-party requester to
 ensure consideration. It is advisable that, upon receipt and review of the served copy
 of such a 37 CFR
 1.181 petition which the third-party requester intends to oppose,
 the requester should immediately place a courtesy telephone call to both the CRU support
 staff and the CRU SPRS to notify the Office that an opposition to the 37 CFR 1.181 
 petition will be filed. Whenever possible, filing of the opposition should be submitted
 electronically.
 

 The filing of a 37 CFR 1.181 petition to vacate an
 ultra vires reexamination order is limited to a single submission,
 even if an opposition thereto is filed by a third-party requester.
 

 III. PRIOR ART SUBMITTED AFTER THE ORDER Any prior art citations or written statements under 37 CFR 1.501 
 submitted after the date of the decision on the order are stored until the reexamination
 is concluded. Note 37
 CFR 1.502 and 1.902 . After the reexamination
 proceeding is concluded, the submission is entered in the patent file. Submissions filed
 after the date of an order for reexamination will not be considered by the examiner
 during the reexamination. See MPEP § 2206 .
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 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 20:50:43