Can a third party requester appeal a decision in an ex parte reexamination?
No, a third party requester in an ex parte reexamination cannot seek judicial review of a decision. The MPEP 2279 clearly states: “A third party requester of an ex parte reexamination may not seek judicial review.” This principle is supported by case law, specifically Yuasa Battery v. Comm’r, 3 USPQ2d 1143 (D.D.C. 1987).
However, it’s important to note that while third party requesters cannot directly appeal, courts have allowed their intervention in certain circumstances. As the MPEP explains: “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.”
To learn more:
Topics:
MPEP 2200 - Citation Of Prior Art And Ex Parte Reexamination Of Patents,
MPEP 2279 - Appeal To Courts,
Patent Law,
Patent Procedure