The patent prosecution process is lengthy and somewhat complex. The party seeking a patent must explain how their submission is unique, as well as the technical details about how it functions or what separates it from similar products. Professionals from the United States Patent and Trademark Office (USPTO) review an application to determine if the concept warrants a patent and then review existing patents to ensure that no infringement or conflicts exist.
Most of the time, securing a patent ensures sole control over a product until the patent eventually expires. Occasionally, outside parties may ask the USPTO to conduct a reexamination. What happens during that process?
A reexamination determines patent validity
Many times, patent reexamination is an ex parte process. A third party, other than the patent holder or the USPTO, asserts that new information indicates a patent may not be valid and enforceable.
Occasionally, outside parties may learn about previously unknown existing patents or other information, such as publications, that may impact the validity of a patent, which is called a new question of patentability for the purpose of reexamination. They may then petition the USPTO to review a recently granted patent that is still in effect to determine if it is, in fact, valid.
The re-examination process may lead to the patent holder changing the scope of the patent or successfully defending the patent as initially granted. Reexamination can be costly and stressful, especially without experienced legal representation.
Consulting with an intellectual property attorney is critical whenever there is a controversy about a patent. An attorney can assist with patent prosecution, renewal, enforcement and validation if re-examination occurs.
