Ex Parte Reexamination Available?
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When Is Ex Parte Reexamination Available?

By Kevin B. Laurence and Matthew C. Phillips of Stoel Rives LLP

Their treatise titled Post-Grant Patent Practice: Review, Reexamination, Reissue and Supplemental Examination will be available in March 2012 from the Patent Resources Group. Their CLE course of the same name will be taught March 29-31 in Bonita Springs, Florida.

The America Invents Act (AIA) maintains ex parte reexamination as an option for challenging the validity of a patent at the U.S. Patent and Trademark Office (PTO). This article explains when a request for ex parte reexamination may be filed with respect to the period of enforceability of a patent, in relation to another reexamination, and, perhaps most importantly, relative to related patent litigation. This article also discusses the role of ex parte reexamination with respect to post-grant review and inter partes review, which are the robust vehicles for challenging patentability at the PTO that will become available under the AIA.

When Can a request for reexamination be filed?

Section 302 of U.S.C. Title 35 states that a request for ex parte reexamination can be filed "at any time."1 Rule 1.510 of C.F.R. Title 37 is somewhat more restrictive, stating that a request can be filed "at any time during the period of enforceability of a patent."2

The period of enforceability of a pa...

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