Can a third party requester intervene in court review of a reexamination decision?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

While third party requesters cannot directly appeal reexamination decisions, they may be allowed to intervene in court reviews under certain circumstances. The MPEP 2279 states:

“While the reexamination statutory provisions do not provide for participation by any third party requester during any court review, the courts have permitted intervention by a third party requester in appropriate circumstances.”

This position is supported by case law, including:

• In re Etter, 756 F.2d 852, 225 USPQ 1 (Fed. Cir. 1985)
• Reed v. Quigg, 230 USPQ 62 (D.D.C. 1986)

However, it’s important to note that even if a third party requester is permitted to intervene, they “has no standing to appeal the court’s decision,” as established in Boeing Co. v. Comm’r of Patents & Trademarks, 853 F.2d 878, 7 USPQ2d 1487 (Fed. Cir. 1988).