Terms and Concepts

Director-Initiated Ex Parte

The PTO Director can institute ex parte reexaminations sua sponte [35 U.S.C. § 303; 37 C.F.R. § 1.520].  Under current PTO practice, the Director can institute a reexamination only upon a finding that a patent brings disrepute on the PTO or that a significant procedural error occurred during examination.  For example, where a patent examiner failed to consider references submitted in an information disclosure statement during the examination process, despite numerous requests from the applicant, the PTO may independently determine whether the references raise a substantial new question (SNQ).  Some argue, that since the creation of the CRU, however, the use of director-initiated ex parte reexaminations has ceased based on the belief that the affected public can assume the burden of policing patents that are adverse to them.  However, others argue that the lack of director-initiated ex parte reexaminations since creation of the CRU is simply a coincidence.