Tepid Demand for New Proceeding
Supplemental Examination (SE) is a new mechanism of the AIA designed to effectively cure inequitable conduct via a new post grant proceeding of the USPTO. The new mechanism went into effect on September 16, 2012 along with the other major post grant provisions.
As reported by Patently-O last week, only a handfulof SE filings have been submitted to date, far fewer than expected by some.
In operation, SE allows a Patentee to submit very detailed explanations of potential issues that may render the patent invalid under an inequitable conduct theory. Upon submission of Substantial New Questions of Patentability (SNQs) detailing such potential defects, the Office will reconsider the information; that is to say the Office will perform a “supplemental examination.” Once such issues are considered and dispatched by an SE certificate, the subject patent would be free of inequitable conduct charges based on the issues considered in the SE. On the other hand, should the materials presented raise an SNQ, a form of patent reexamination is conducted (differing from typical practices in that it is not be limited to patents and printed publications).
Sounds like a great idea….and it was, prior to Therasense.