What happens if fraud is suspected during reexamination or supplemental examination?
If fraud is suspected during reexamination or supplemental examination, the USPTO has specific procedures in place. For reexamination proceedings, MPEP 2014 states:
“Any fraud practiced or attempted on the Office or any violation of the duty of disclosure through bad faith or intentional misconduct by any such individual results in noncompliance with 37 CFR 1.555(a). Any such issues raised by the patent owner or the third party requester during a reexamination proceeding will merely be noted as unresolved questions under 37 CFR 1.552(c).”
For supplemental examination, the process is different:
“If the Office becomes aware, during the course of a supplemental examination or of any ex parte reexamination ordered under 35 U.S.C. 257 as a result of the supplemental examination proceeding, that a material fraud on the Office may have been committed in connection with the patent requested to be examined, the supplemental examination proceeding or any ex parte reexamination proceeding ordered under 35 U.S.C. 257 will continue. The matter will be referred to the U.S. Attorney General in accordance with 35 U.S.C. 257(e).”
This means that in supplemental examination, suspected fraud is referred to the U.S. Attorney General, while in reexamination, it is noted as an unresolved question.
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