MPEP § 2227 — MPEP § 2227
Current through: 2022-07-01

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

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2227 
 

 
 
 
 
 
 2227 Incomplete Request for Ex Parte Reexamination
 Filed under 35 U.S.C. 302 [R-10.2017]
 

 
 37 CFR 1.510 Request for ex parte reexamination. 

 *****

 
 (c) If the request does not include the fee for requesting
 ex parte reexamination required by paragraph (a) of this
 section and meet all the requirements by paragraph (b) of this section, then the
 person identified as requesting reexamination will be so notified and will
 generally be given an opportunity to complete the request within a specified time.
 Failure to comply with the notice will result in the ex parte 
 reexamination request not being granted a filing date, and will result in
 placement of the request in the patent file as a citation if it complies with the
 requirements of § 1.501 .
 

 (d) The filing date of the request for ex parte reexamination is the date on which the request satisfies all the
 requirements of this section.
 

 
 *****

 

 Request papers that fail to satisfy all the requirements of
 37 CFR 1.510(a) and
 (b) are incomplete and will not be granted a filing date. 
 

 OFFICE PROCEDURE WHERE THE REQUEST FAILS TO COMPLY WITH REQUIREMENTS FOR A FILING
 DATE 
 

 A. Discovery of Non-Compliance with Filing Date Requirement(s) Prior to
 Assigning a Filing Date 
 

 1. Notice of Failure to Comply with Reexamination Request Filing
 Requirement The Central Reexamination Unit (CRU) Legal Instrument Examiner
 (LIE) and CRU Paralegal check the request for compliance with the reexamination
 filing date requirements. If it is determined that the request fails to meet one
 or more of the filing date requirements (see MPEP § 2214 ),
 the person identified as requesting reexamination will be so notified and will be
 given an opportunity to complete the requirements of the request within a
 specified time (generally 30 days). Form PTOL-2077, “Notice of Failure to Comply
 with Ex Parte Reexamination Request Filing Requirements,” is
 used to provide the notification for ex parte reexamination. If
 explanation is needed as to a non-compliance item, the box at the bottom of the
 form will be checked. An attachment will then be completed to specifically explain
 why the request does not comply. If there is a filing fee deficiency, a form,
 PTOL-2057, is completed and attached to form PTOL-2077.
 

 2. Failure to Remedy Defect(s) in “Notice of Failure to Comply with
 Ex Parte Reexamination Request Filing Requirements”
 If after receiving a “Notice of Failure to Comply with 
 Ex Parte Reexamination Request Filing Requirements,” the requester
 does not remedy the defects in the request papers that are pointed out, then the
 request papers will not be given a filing date, but the assigned control number
 will be retained. Examples of a failure to remedy the defect(s) in the notice are
 (A) where the requester does not timely respond to the notice, and (B) where
 requester does respond, but the response does not cure the defect(s) identified to
 requester and/or introduces a new defect or deficiency.
 

 If the requester timely responds to the “Notice of Failure to
 Comply with Ex Parte Reexamination Request Filing
 Requirements,” the CRU LIE and CRU Paralegal will check the request, as
 supplemented by the response, for correction of all non-compliance items
 identified in the notice. If any identified non-compliance item has not been
 corrected, a filing date will not be assigned to the
 request papers. It is to be noted that a single failure to comply with the “Notice
 of Failure to Comply with Ex Parte Reexamination Request Filing
 Requirements” will ordinarily result in the reexamination request not being
 granted a filing date. 37 CFR 1.510(c) provides that
 “[f]ailure to comply with the notice may result in the ex parte 
 reexamination request not being granted a filing date.” Thus, absent extraordinary
 circumstances, requester will be given only one opportunity
 to correct the non-compliance. Similarly, if the response introduces a new defect
 or deficiency into the request papers, the ex parte 
 reexamination request will not be granted a filing date absent extraordinary
 circumstances. 
 

 If the request papers are not made filing-date-compliant in
 response to the Office’s “Notice of Failure to Comply with Ex
 Parte Reexamination Request Filing Requirements,” the CRU LIE will
 prepare a “Notice of Termination of Preprocessing of Ex Parte 
 Reexamination Request,” form PTOL-2079, identifying what defects have not been
 corrected.
 

 B. Non-Compliance with Filing Date Requirement(s) Discovered After Initial
 Issuance of Notice of Reexamination Request Filing Date 
 

 1. Decision Vacating Filing Date After a filing date and control number are assigned to the
 request papers, the examiner reviews the request to decide whether to grant or
 deny reexamination. If, in the process of reviewing the request, the examiner
 notes a non-compliance item not earlier recognized, the examiner will communicate
 with the CRU Supervisory Patent Reexamination Specialist (SPRS) detailing any such
 non-compliance item(s). The CRU SPRS will discuss the case with an appropriate
 OPLA Legal Advisor. Upon confirmation of the existence of any such non-compliant
 item(s), OPLA will issue a decision vacating the assigned reexamination filing
 date. In OPLA’s decision, the requester will be notified of the non-compliant
 item(s) and given time to correct the non-compliance. As noted above,
 37 CFR
 1.510(c) provides that “[f]ailure to comply with the notice
 may result in the ex parte reexamination request not being
 granted a filing date.” Thus, absent extraordinary circumstances, requester will
 only be given one opportunity to correct the non-compliant
 item(s) identified in the Decision Vacating Filing Date. This category also
 includes instances where the Office becomes aware of a check returned for
 insufficient fund or a stopped payment of a check after a filing date has been
 assigned, and prior to the decision on the request for reexamination.
 

 2. Failure to Remedy Defect in Decision Vacating Filing Date If the requester does not timely respond to the Office’s notice,
 the CRU will draft a Decision Vacating the Proceeding, which will be reviewed and
 signed by OPLA.
 

 If the requester timely responds to the Decision Vacating Filing
 Date, but the response fails to satisfy all the non-compliance items identified in
 the decision or introduces a new defect into the request papers, the examiner will
 inform the CRU SPRS of the defects, and whether the non-compliant request papers
 qualify as a 37
 CFR 1.501 submission or not (and why). Where the defects are
 not remedied or a new defect has been added, the Office will issue a Decision
 Vacating the Proceeding.
 

 The Decision Vacating the Proceeding will identify the items that
 do not comply with the filing date requirements which were not rectified, or are
 newly added. The decision will also point out the disposition of the request
 papers (treated as a 37 CFR 1.501 submission or
 discarded) and why. 
 

 

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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 20:50:43