How does pending litigation affect the timing of supplemental examination requests?

Pending litigation can extend the period during which a patent owner can file a request for supplemental examination. The MPEP 2808 states:

“Specifically, if litigation is instituted within the statute of limitations (see 35 U.S.C. 286), requests for supplemental examination may be filed after the statute of limitations has expired, as long as the patent is still enforceable against someone.”

This means that if a patent is involved in litigation that was initiated within the statute of limitations period, the patent owner may be able to file for supplemental examination even after the normal enforceability period has ended, provided the patent is still enforceable in the context of that litigation.

To learn more:

• supplemental examination
• patent litigation
• enforceability period
• statute of limitations