MPEP § 2267 — MPEP § 2267
Current through: 2022-07-01

2267-Handling of Inappropriate or Untimely Filed Papers 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2267 
 

 
 
 
 
 
 2267 Handling of Inappropriate or Untimely Filed Papers [R-10.2019]

 The applicable regulations ( 37 CFR 1.501(a) , 1.550(e) ) provide
 that certain types of correspondence will not be considered or acknowledged unless timely
 received. Whenever reexamination correspondence is received, a decision is required of the
 Office as to the action to be taken on the correspondence based on what type of paper it is
 and whether it is timely.
 

 The return of inappropriate submissions complies with the regulations that
 certain papers will not be considered and also reduces the amount of paper which would
 ultimately have to be scanned into the record. Where an inappropriate (unauthorized,
 improper) paper has already been scanned into the Image File Wrapper (IFW) of the
 reexamination proceeding before discovery of the inappropriate nature of the paper, the
 paper cannot be physically returned to the party that submitted it. Instead, the paper will
 be “returned” by expunging it, i.e., by marking the paper as “non-public” and “closed” so
 that it does not appear in the active IFW record with the other active papers that comprise
 the public record of the reexamination proceeding.
 

 I. DISPOSITION OF PAPERS Where papers are filed during reexamination proceedings which are
 inappropriate because of some defect, such papers will be expunged from the official
 file by marking the papers “closed” and “non-public”.
 

 II. TYPES OF PAPERS EXPUNGED WITH APPROVAL OF THE DIRECTOR OF THE USPTO OR CRU/TC
 DIRECTOR OR SPRS 
 
 
 
 Filed by Owner 
 A. Premature Response by Owner- 
 

 
 
 
 §
 1.530(a) , § 1.540 
 Where the patent owner is NOT
 the requester, any response or amendment filed by owner prior to an order to
 reexamine is premature, will not be considered, and will be
 expunged.
 
 

 
 §
 1.550(g) 
 B. Paper Submitted on Behalf of
 Third Party -
 
 

 
 
 Submission filed on behalf of a third party
 will not be considered, and will be expunged. Where third party paper is
 submitted as part of a patent owner response, see MPEP §
 2254 and § 2266 .
 
 

 
 
 In those rare instances where an opposition to a patent owner petition
 is filed, after such opposition is filed by a third party requester (regardless of
 whether such opposition has an entry right or not), any further paper in
 opposition/rebuttal/response to the third party opposition paper will not be considered
 and will be expunged. There must be a limitation on party iterations of input,
 especially given the statutory mandate for special dispatch in reexamination.
 

 
 
 
 
 Filed by Requester 
 A. No Statement Filed by Owner - 
 

 
 
 
 §
 1.535 
 If a patent owner fails to file
 a statement within the prescribed limit, any reply by the requester is
 inappropriate, will not be considered, and will be expunged.
 
 

 
 
 B. Late Response by Requester
 -
 
 

 
 §
 1.535 , § 1.540 
 Any response subsequent to 2
 months from the date of service of the patent owner’s statement will not be
 considered, and will be expunged.
 
 

 
 
 C. Additional Response by
 Requester-
 
 

 
 §
 1.550(g) 
 The active participation of the
 reexamination requester ends with the reply pursuant to §
 1.535 . Any further submission on behalf of requester
 will not be considered, and will be expunged.
 
 

 
 
 In those rare instances where an opposition to a requester petition is
 filed, after such opposition is filed by the patent owner (regardless of whether such
 opposition has an entry right or not), any further paper in opposition/rebuttal/response
 to the patent owner opposition paper will not be considered and will be returned. There
 must be a limitation on party iterations of input, especially given the statutory
 mandate for special dispatch in reexamination. Further, any petition requesting that an
 extension of time be denied will be expunged, since a requester does not have a
 participation right in the reexamination proceeding. 
 

 
 
 
 
 Filed by Third Party 
 
 

 
 
 
 §
 1.501 , § 1.565(a) 
 Unless a paper submitted by a third party
 raises only issues appropriate under 37 CFR 1.501 , or
 consists solely of a prior decision on the patent by another forum, e.g., a
 court (see MPEP § 2207 and § 2286 or
 presentation of a paper of record in a litigation (see MPEP §
 2282 )), it will be destroyed, or if inadvertently
 entered, it will be expunged from the file.
 
 

 
 
 Where a petition under 37 CFR 1.182 or 1.183 has been
 filed, the reexamination proceeding should be forwarded to the Office of Patent Legal
 Administration for decision.
 

 III. TYPES OF DEFECTIVE PAPERS TO BE RETAINED IN THE REEXAMINATION FILE 
 
 
 
 Filed by Owner 
 A. Unsigned Papers - 
 

 
 
 
 §
 1.33 
 Papers filed by owner which are
 unsigned or signed by fewer than all of the owners (no attorney of record or
 acting in representative capacity).
 
 

 
 
 B. No Proof of Service - 
 

 
 §
 1.248 
 Papers filed by the patent owner
 in which no proof of service on requester is included and proof of service
 is required may be denied consideration.
 
 

 
 
 C. Untimely Papers - 
 

 
 §
 1.530(b) , § 1.540 
 Where owner has filed a paper which is
 untimely, that is, it was filed after the period set for response, the paper
 will not be considered.
 
 

 
 
 
 
 
 
 Filed by Requester 
 A. Unsigned Papers - 
 

 
 
 
 
 Papers filed by requester which
 are unsigned will not be considered.
 
 

 
 
 B. No Proof of Service - 
 

 
 § 1.510(b)(5) , § 1.33 ,
 § 1.248 
 Papers filed by requester in which no proof
 of service on owner is included and where proof of service is required may
 be denied consideration.
 
 

 
 
 In those limited instances where there is a right to file an opposition
 to a petition, any such opposition must be filed within two weeks of the date upon which
 a copy of the original petition was served on the opposing party, to ensure
 consideration. Any such opposition which is filed after the two-week period will remain
 in the record, even though it is not considered.
 

 IV. PAPERS LOCATED IN THE PATENT FILE 
 
 
 
 §
 1.501 
 Citations by Third
 Parties
 
 

 
 §
 1.550(h) 
 Submissions by third parties based solely
 on prior art patents or publications filed after the date of the order to
 reexamine are not entered into the patent file but delayed until the
 reexamination proceedings have been concluded. 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 20:49:35