In the summer of 2005, responding to industry criticism on the efficacy of patent reexamination, the USPTO created the Central Reexamination Unit (CRU). The CRU is formed of highly skilled primary patent examiners that have been specially selected from the Patent Examining Corps. These examiners average more than 15 years of experience and have technical backgrounds that reflect the broad spectrum of technologies encountered in patent reexamination. Many of the primary examiners chosen to work in the CRU have advanced technical and law degrees.
The mission of the CRU is to ensure high quality, objective and timely processing of reexamined patents. The CRU endeavors to comply with the “special dispatch” requirements of the reexamination statutes. Reexamined patents are assigned to examiners in the CRU who were not previously involved in the examination of the original patents or in prior reexamination proceedings of the patents. The examiners work in teams of three including a Special Program Examiner (SPE). Patentability review conferences are conducted at each point in the reexamination decision making process in order to reach a consensus in decision making on claim patentability.
Currently, the CRU has 48 primary examiners working in 3 Units. Gregory Morse, who was appointed the Director of the CRU on June 23, 2008 has 5 SPEs and fourteen technical support staff. Mr. Morse, in turn reports to Technology Center Director Irem Yucel.
The CRU will only reexamine patent claims for which reexamination has been requested for which a substantial new question of patentability has been established. MPEP § 2240 (citing Sony v. Dudas) The CRU makes the determination as to whether the new or previously presented patents and printed publications would have been important to a reasonable examiner in deciding whether to allow the patents claims. The new or previously presented patents and printed publications must be noncumulative to the information previously considered during the original patent examination.
The CRU works closely with the Office of Patent Legal Administration (OPLA) directed by Brian Hanlon to address issues associated with, intra alia, petitions, merger of proceedings, and return of improperly submitted papers.
For fiscal year 2009 ending September 30, 2009, 658 ex parte reexamination and 258 inter partes reexamination requests were filed. 92% of ex parte reexamination requests and 95% of inter partes reexamination requests were granted. Of the patents that were subject to reexamination recent trends show that more than 60% of these patents are involved in concurrent litigation. Average pendencies to reexamination certificate for these proceedings were 25.2 and 35.8 months, respectively. For ex parte reexamination concluded proceedings, 25% had all claims confirmed, 11% had all claims canceled and 64% had claim changes. For inter partes reexamination concluded proceedings, 6% had all claims confirmed, 54% had all claims canceled or disclaimed and 40% had claim changes.
These USPTO reexamination statistics demonstrate that reexamination proceedings conducted by the CRU quite often result in patents having their scope of protection narrowed; accounting for the increased popularity of third parties filing reexamination requests, especially where the reexamined patents are in concurrent litigation.