What happens if a petition to expunge is not filed in time during a reexamination proceeding?
If a petition to expunge is not filed in a timely manner during a reexamination proceeding, the submitted materials become part of the public record. MPEP § 724.04(c) states:
“If a petition to expunge is not filed prior to, or shortly after (i.e., in time to be addressed before the reexamination proceeding enters the reexamination certificate printing process), the mailing of the NIRC, the materials submitted under MPEP § 724.02 will become a permanent part of the reexamination file and open to the public under 37 CFR 1.11(d).”
In cases where materials have already been made of record and are later determined to be protected, a different petition process is required:
“In the event materials have already been made of record by a party, and it is subsequently determined that the materials are protected, the proper petition to submit would be a petition to seal the protected material under 37 CFR 1.182, with the requisite fee.”
This emphasizes the importance of timely filing petitions to expunge and provides an alternative for protecting materials that have already been made public.
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