What is the difference in priority between reexamination proceedings and reissue applications?

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.

According to MPEP 2261, there is no inherent difference in priority between reexamination proceedings and reissue applications at the United States Patent and Trademark Office (USPTO). The key factor determining their priority is whether they are involved in litigation.

The MPEP states:

“Any cases involved in litigation, whether they are reexamination proceedings or reissue applications, will have priority over all other cases. Reexamination proceedings not involved in litigation will have priority over all other cases except reexaminations or reissues involved in litigation.”

This means that:

• Reexaminations and reissues involved in litigation have equal, top priority.
• Reexaminations not involved in litigation have the next level of priority.
• Reissues not involved in litigation fall into the category of “all other cases” and have lower priority than reexaminations not involved in litigation.

The priority is thus determined primarily by litigation status rather than the type of proceeding (reexamination or reissue).