What is a re-examination of a patent?

Anyone has the right to request that a previously issued patent be re-examined by the United States Patent and Trademark Office (for a fee). The request for re-examination is usually reserved for cases in which a party is trying to invalidate a patent or trying to get their patent expressly re-validated, by presenting either new prior art or explaining the affect of prior art on the invention. The re-examination request can potentially help to bypass often lengthy and costly infringement lawsuits. A re-examination request is not limited by any date restrictions, as anyone may file one at any time.

There are two types of re-examinations: Inter partes and ex parte. Inter partes (between parties) allows both the patentee (or his/her/their assignee) and the requester to respond and comment on office actions issued by an examiner during the re-examination process. Ex parte (by one party) allows negotiation between the examiner and the patentee only; the requester is only an observer.

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The content of this article is not intended to be, and does not constitute, legal advice and does not create attorney-client privilege. Consult the attorney of your choice before embarking on any legal matter or any document preparation/filing.

Dr. Thomas R. (Terry) Williamson III is a Patent Attorney practicing in Atlanta, Georgia.

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