Can an examiner request rehearing of a PTAB decision?
Yes, an examiner can request rehearing of a Patent Trial and Appeal Board (PTAB) decision. However, this process is subject to specific guidelines and approvals. The MPEP states:
“The examiner may request rehearing of the Board decision. Such a request should normally be made within 2 months of the return of the application to the TC or the reexamination proceeding or reissue application to the CRU.”
The request for rehearing must go through an approval process:
- It must be approved by the Technology Center (TC) or Central Reexamination Unit (CRU) Director.
- It must be forwarded to the Office of the Deputy Commissioner for Patent Examination Policy for approval before mailing.
The request must also meet specific content requirements:
“The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board. Arguments not raised in the answers before the Board and evidence not previously relied upon in the answers are not permitted in the request for rehearing except that the examiner may present a new argument based upon a recent relevant decision of either the Board or a Federal Court.”
If approved, the TC or CRU will enter the request in the electronic file, and a copy will be provided to the appellant, who will have 2 months to file a reply.
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