Can a third party requester appeal a decision in an ex parte reexamination?

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.

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.”