MPEP § 2802 — MPEP § 2802
Current through: 2022-07-01

2802-Supplemental Examination 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2800 

 Section 2802 
 

 
 
 
 
 
 2802 Supplemental Examination [R-10.2019]

 
 35 U.S.C. 257 
 Supplemental examinations to consider, reconsider, or correct information. 

 
 (a) REQUEST FOR SUPPLEMENTAL EXAMINATION.—A patent
 owner may request supplemental examination of a patent in the Office to consider,
 reconsider, or correct information believed to be relevant to the patent, in
 accordance with such requirements as the Director may establish. Within 3 months
 after the date a request for supplemental examination meeting the requirements of
 this section is received, the Director shall conduct the supplemental examination
 and shall conclude such examination by issuing a certificate indicating whether
 the information presented in the request raises a substantial new question of
 patentability. 
 

 (b) REEXAMINATION ORDERED.—If the certificate issued
 under subsection (a) indicates that a substantial new question of patentability is
 raised by 1 or more items of information in the request, the Director shall order
 reexamination of the patent. The reexamination shall be conducted according to
 procedures established by chapter 30, except that the patent owner shall not have
 the right to file a statement pursuant to section 304. During the reexamination,
 the Director shall address each substantial new question of patentability
 identified during the supplemental examination, notwithstanding the limitations in
 chapter 30 relating to patents and printed publication or any other provision of
 such chapter. 
 

 (c) EFFECT.— 
 
 (1) IN GENERAL.—A patent shall not be held
 unenforceable on the basis of conduct relating to information that had not
 been considered, was inadequately considered, or was incorrect in a prior
 examination of the patent if the information was considered, reconsidered,
 or corrected during a supplemental examination of the patent. The making of
 a request under subsection (a), or the absence thereof, shall not be
 relevant to enforceability of the patent under section 282. 
 

 
 
 (2) EXCEPTIONS.— 
 
 (A) PRIOR ALLEGATIONS.—Paragraph (1) shall
 not apply to an allegation pled with particularity in a civil action,
 or set forth with particularity in a notice received by the patent
 owner under section 505(j)(2)(B)(iv)(II) of the Federal Food, Drug,
 and Cosmetic Act (21 U.S.C. 355(j)(2)(B)(iv)(II)), before the date of
 a supplemental examination request under subsection (a) to consider,
 reconsider, or correct information forming the basis for the
 allegation. 
 

 (B) PATENT ENFORCEMENT ACTIONS.—In an action
 brought under section 337(a) of the Tariff Act of 1930 (19 U.S.C.
 1337(a)), or section 281 of this title, paragraph (1) shall not apply
 to any defense raised in the action that is based upon information
 that was considered, reconsidered, or corrected pursuant to a
 supplemental examination request under subsection (a), unless the
 supplemental examination, and any reexamination ordered pursuant to
 the request, are concluded before the date on which the action is
 brought. 
 

 
 

 
 

 (d) FEES AND REGULATIONS.— 
 
 (1) FEES.—The Director shall, by regulation,
 establish fees for the submission of a request for supplemental examination
 of a patent, and to consider each item of information submitted in the
 request. If reexamination is ordered under subsection (b), fees established
 and applicable to ex parte reexamination proceedings
 under chapter 30 shall be paid, in addition to fees applicable to
 supplemental examination. 
 

 (2) REGULATIONS.—The Director shall issue
 regulations governing the form, content, and other requirements of requests
 for supplemental examination, and establishing procedures for reviewing
 information submitted in such requests. 
 

 
 

 (e) FRAUD.—If the Director becomes aware, during the
 course of a supplemental examination or reexamination proceeding ordered under
 this section, that a material fraud on the Office may have been committed in
 connection with the patent that is the subject of the supplemental examination,
 then in addition to any other actions the Director is authorized to take,
 including the cancellation of any claims found to be invalid under section 307 as
 a result of a reexamination ordered under this section, the Director shall also
 refer the matter to the Attorney General for such further action as the Attorney
 General may deem appropriate. Any such referral shall be treated as confidential,
 shall not be included in the file of the patent, and shall not be disclosed to the
 public unless the United States charges a person with a criminal offense in
 connection with such referral. 
 

 (f) RULE OF CONSTRUCTION.—Nothing in this section shall
 be construed— 
 
 (1) to preclude the imposition of sanctions based
 upon criminal or antitrust laws (including section 1001(a) of title 18, the
 first section of the Clayton Act, and section 5 of the Federal Trade
 Commission Act to the extent that section relates to unfair methods of
 competition); 
 

 (2) to limit the authority of the Director to
 investigate issues of possible misconduct and impose sanctions for
 misconduct in connection with matters or proceedings before the Office; or
 
 

 (3) to limit the authority of the Director to
 issue regulations under chapter 3 relating to sanctions for misconduct by
 representatives practicing before the Office. 
 

 
 

 
 

 35 U.S.C.
 257(a) provides that supplemental examination may be requested by the
 patent owner to consider, reconsider, or correct information believed to be relevant to the
 patent in accordance with requirements established by the Office. The information presented
 in a request for supplemental examination is not limited to patents and printed
 publications, and may include, for example, issues of patentability under 35 U.S.C. 101 and
 112 . Within three months of the receipt of a request for
 supplemental examination (meeting the requirements of 35 U.S.C.
 257 including the requirements established by the Office), the Office
 shall conduct a supplemental examination and conclude the supplemental examination
 proceeding with the issuance of a supplemental examination certificate. The supplemental
 examination certificate shall indicate whether the items of information presented in the
 request raise a substantial new question of patentability.
 

 If the supplemental examination certificate, issued under
 35 U.S.C.
 257(a) , indicates that a substantial new question of patentability is
 raised by one or more items of information in the request for supplemental examination, the
 supplemental examination certificate will indicate that ex parte 
 reexamination will be ordered by the Office. The resulting ex parte 
 reexamination proceeding will be conducted according to ex parte 
 reexamination procedures, except that the patent owner does not have the right to file a
 statement pursuant to 35
 U.S.C. 304 , and the basis of the ex parte 
 reexamination is not limited to patents and printed publications. Each substantial new
 question of patentability identified during the supplemental examination proceeding will be
 addressed by the Office during the resulting ex parte reexamination
 proceeding. See 35 U.S.C. 257(b) .
 

 35 U.S.C.
 257(c) specifies the effect of a supplemental examination under
 35 U.S.C.
 257(a) and any resulting ex parte reexamination
 under 35 U.S.C.
 257(b) on the enforceability of the patent. 
 

 35 U.S.C.
 257(d)(1) provides the Director with authority to establish fees for
 filing a request for supplemental examination and for considering each item of information
 submitted with the request. If ex parte reexamination is ordered under
 35 U.S.C.
 257(b) , 35 U.S.C. 257(d)(1) also establishes
 that the fees applicable to ex parte reexamination must be paid in
 addition to the fees for supplemental examination. 35 U.S.C.
 257(d)(2) provides the Director with authority to establish
 regulations governing the requirements of a request for supplemental examination, including
 its form and content. 
 

 In accordance with 35 U.S.C.
 257(e) , if the Office becomes aware, during the course of a
 supplemental examination or ex parte reexamination ordered under
 35 U.S.C.
 257 , that a material fraud on the Office may have been committed in
 connection with the patent that is the subject of the supplemental examination, the Office
 shall refer the matter to the U.S. Attorney General, in addition to any other actions the
 Office is authorized to take, including the cancellation of any claims found to be invalid
 under 35 U.S.C.
 307 as a result of ex parte reexamination ordered
 under 35 U.S.C.
 257 . The Office anticipates that such instances will be rare. The
 Office regards the term 
 "material fraud"
 
 
 in
 35 U.S.C.
 257(e) to be narrower in scope than inequitable conduct as defined by
 the U.S. Court of Appeals for the Federal Circuit in Therasense, Inc. v. Becton,
 Dickinson & Co., 649 F.3d 1276, 99 USPQ2d 1065 (Fed. Cir. 2011).
 

 Nothing in 35 U.S.C. 257 precludes the imposition
 of sanctions based upon criminal or antitrust laws (including 18 U.S.C. 1001(a)), the first
 section of the Clayton Act, and section 5 of the Federal Trade Commission Act to the extent
 that section relates to unfair methods of competition. See 35 U.S.C.
 257(f)(1) . Section 12 of the AIA sets forth rules of construction,
 providing that 35 U.S.C. 257 shall not be construed to limit the authority of the
 Office to investigate issues of possible misconduct and impose sanctions for misconduct
 involving matters or proceedings before the Office, or to issue regulations under
 35 U.S.C.
 32 or 35 U.S.C. 33 relating to sanctions for
 misconduct by patent practitioners. See 35 U.S.C.
 257(f)(2) and 35 U.S.C. 257(f)(3) .
 

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 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