What are the grounds for vacating an ex parte reexamination order?

An ex parte reexamination order may be vacated under rare and specific circumstances. According to MPEP 2246, “appropriate circumstances” for vacating an order under 37 CFR 1.181(a)(3) include:

  • The reexamination order is not based on prior art patents or printed publications
  • All claims of the patent were held invalid by a final federal court decision
  • Reexamination was ordered for the wrong patent
  • Reexamination was ordered based on a duplicate copy of the request

The MPEP states: “These types of petitions to vacate an ex parte reexamination order are not decided by the Board, but are delegated to the Director of Central Reexamination Unit (CRU).” It’s important to note that these petitions should be rare and will only be granted if the USPTO acted in “brazen defiance” of its statutory authorization.

To learn more:

Topics: MPEP 2200 - Citation Of Prior Art And Ex Parte Reexamination Of Patents, MPEP 2246 - Decision Ordering Reexamination Under 35 U.S.C. 304, Patent Law, Patent Procedure
Tags: Central Reexamination Unit, ex parte reexamination, patent law, USPTO procedures, Vacating Reexamination Order