"If the use of reexamination is allowed to render meaningless IPR estoppel provisions, it creates a structural loophole. A patent owner's victory at the PTAB-whether procedural or on the merits-becomes provisional at best."
"A determined challenger can simply reroute through the Central Reexamination Unit (CRU), repackage arguments, and start again. This should not be a feature of the system-it is a gaping hole and structural failure."
"While the USPTO just today took first steps to rein in the growing reexamination practice by allowing patent owners to challenge the existence of a substantial new question of patentability (SNQ) prior to determining whether to institute a reexamination proceeding, the real mischief associated with repackaging failed IPRs as reexaminations is not SNQ related."
In PTAB practice, aggressive procedural strategies have become the norm, particularly with the use of discretionary denials in inter partes review (IPR). Petitioners are increasingly using ex parte reexamination as a fallback after IPR denials or unfavorable outcomes. This tactic risks undermining IPR estoppel provisions, allowing challengers to circumvent patent owners' victories. The USPTO has initiated steps to address this issue by allowing patent owners to challenge substantial new questions of patentability (SNQ) before reexamination, but significant loopholes remain in the system.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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