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CAFC Probes Statutory Basis For Third Party Declaration Filings in Patent Reexamination
Can Declaration Evidence be Considered “Written Comments”
Since the advent of inter partes patent reexamination (IPX), both Requesters and Patentees alike have relied upon declaration evidence to bolster their respective positions. Practically speaking, the lack of RCE practice in patent reexamination creates a limited prosecution window relative to the prosecution of patent applications. For this reason, submission of declaration evidence by Patentees under 37 CFR § 1.131 and/or 37 CFR § 1.132 is fairly routine in patent reexamination proceedings.
For Requesters, it is critical to respond to the declaration evidence of the Patentee in kind, especially as the Requester will be estopped from advancing failed arguments of the IPX in a district court or subsequent USPTO proceeding.
Despite this well established, declaration practice in IPX, a recent reexamination dispute before the CAFC questions the statutory propriety of Requester declaration submissions. Read the rest of this entry »
