What are the consequences if a third party requester fails to file a timely appeal in inter partes reexamination?
If a third party requester fails to file a timely appeal or if their appeal is dismissed in inter partes reexamination, they lose certain rights in the appeal process. However, they may retain some limited participation options depending on the circumstances.
According to MPEP 2666.20:
“Where the third party requester fails to make a timely appeal or the third party requester’s appeal is dismissed, the third party requester loses further rights as the appellant in the appeal. However, where a patent owner appellant continues its appeal, the third party requester as the respondent can file a respondent brief.”
Additionally, the third party requester can:
- Enter the appeal pursuant to 37 CFR 41.77(c) and (e) (submission after a Board decision)
- Comment on any subsequent patent owner response to any Office action issued after the appeal
If no other appeal is pending in the proceeding, the reexamination prosecution should be terminated by issuing a Notice of Intent to Issue Reexamination Certificate (NIRC).
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