Can a filing date be vacated after it has been assigned to an ex parte reexamination request?
Yes, a filing date can be vacated after it has been assigned to an ex parte reexamination request if non-compliance issues are discovered during the examiner’s review. The MPEP 2227 outlines this process:
“If, in the process of reviewing the request, the examiner notes a non-compliance item not earlier recognized, the examiner will communicate with the CRU Supervisory Patent Reexamination Specialist (SPRS) detailing any such non-compliance item(s). […] Upon confirmation of the existence of any such non-compliant item(s), OPLA will issue a decision vacating the assigned reexamination filing date.”
In such cases, the requester will be notified of the non-compliant items and given time to correct them. Typically, only one opportunity is given to correct these issues, absent extraordinary circumstances. If the requester fails to remedy the defects or introduces new ones, a Decision Vacating the Proceeding may be issued.
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