What happens if all patent claims are canceled in an Ex Parte Reexamination?
If all patent claims are canceled as a result of an ex parte reexamination, it has significant consequences for the patent and any related proceedings. According to MPEP 2288:
“If an ex parte reexamination certificate has been issued and published which cancels all of the claims of the patent, no further Office proceedings will be conducted with that patent or any reissue applications or any reexamination requests relating thereto.”
This means that once all claims are canceled and the certificate is published, the patent effectively ceases to exist, and the USPTO will not entertain any further proceedings related to that patent. However, the MPEP does note an extremely rare exception:
“However, in an extremely rare situation in which a reissue application is copending with a reexamination proceeding in which a reexamination certificate subsequently issues cancelling all claims of the patent, the patent owner may file a petition under 37 CFR 1.183 requesting waiver of the provisions of 37 CFR 1.570(d), to address claims that were pending in the reissue application prior to the issuance of the certificate.”
Such petitions are subject to specific requirements and are considered on a case-by-case basis.
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