How does the USPTO handle potential fraud discovered during supplemental examination?
The USPTO has specific procedures for handling potential fraud discovered during supplemental examination. The MPEP explains:
“In accordance with 35 U.S.C. 257(e), if the Office becomes aware, during the course of a supplemental examination or ex parte reexamination ordered under 35 U.S.C. 257, that a material fraud on the Office may have been committed in connection with the patent that is the subject of the supplemental examination, the Office shall refer the matter to the U.S. Attorney General, in addition to any other actions the Office is authorized to take, including the cancellation of any claims found to be invalid under 35 U.S.C. 307 as a result of ex parte reexamination ordered under 35 U.S.C. 257.”
It’s important to note that the USPTO anticipates such instances of material fraud to be rare, and the term “material fraud” is considered narrower in scope than inequitable conduct as defined in case law.
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