How does supplemental examination affect patent enforceability?
Supplemental examination can have a significant impact on patent enforceability. According to the MPEP:
“35 U.S.C. 257(c) specifies the effect of a supplemental examination under 35 U.S.C. 257(a) and any resulting ex parte reexamination under 35 U.S.C. 257(b) on the enforceability of the patent.”
Generally, if information is considered, reconsidered, or corrected during supplemental examination, the patent cannot be held unenforceable based on conduct relating to that information in a prior examination. However, there are exceptions to this rule, particularly for prior allegations and certain patent enforcement actions.
To learn more:
Topics:
MPEP 2800 - Supplemental Examination,
MPEP 2802 - Supplemental Examination,
Patent Law,
Patent Procedure