What are the estoppel provisions related to ex parte reexamination requests?
The estoppel provisions related to ex parte reexamination requests are based on inter partes review and post-grant review proceedings. According to MPEP 2210:
“The estoppel provisions of AIA 35 U.S.C. 315(e)(1) or 35 U.S.C. 325(e)(1) are based on inter partes review and post grant review, respectively, and they only prohibit the filing of a subsequent request for ex parte reexamination, once estoppel attaches; there is no estoppel as to the Office maintaining an existing ex parte reexamination proceeding.”
This means that parties who have participated in an inter partes review or post-grant review may be barred from subsequently filing an ex parte reexamination request on the same patent claims, based on prior art that was raised or reasonably could have been raised in the previous proceeding. However, these provisions do not affect ongoing ex parte reexamination proceedings.
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