§257 Supplemental Examinations to Consider, Reconsider, or Correct Information

Summary

A patent owner can ask the Patent Office Director to take a second look at information about their patent if they think it was missed, not handled well, or was wrong. The Director must finish that review within 3 months and send a certificate saying if the new information raises a substantial new question of whether the patent should have been allowed. If a substantial new question is found, the Director must order a reexamination under the rules of chapter 30, but the patent owner cannot file a statement under section 304. During reexamination the Director must address every substantial new question even if chapter 30 would normally limit some issues. If the information is considered or corrected in a supplemental examination, that conduct normally cannot be used to say the patent is unenforceable. But that protection does not apply if the issue was already alleged with particularity in a civil case or in a notice under 21 U.S.C. 355(j)(2)(B)(iv)(II) before the supplemental request, or in certain actions under section 337(a) (19 U.S.C. 1337(a)) or section 281 unless the supplemental exam and any reexamination finish before the action is filed. The Director must set fees by rule for filing a request and for each item of information, and reexamination fees under chapter 30 must also be paid if reexamination is ordered. If the Director finds possible material fraud during these reviews, the Director may cancel invalid claims under section 307 and must refer the matter confidentially to the Attorney General; the referral is not put in the patent file or made public unless criminal charges follow. Nothing here stops criminal or antitrust penalties (including section 1001(a) of title 18, the first section of the Clayton Act, and section 5 of the Federal Trade Commission Act), or limits the Director’s power to investigate misconduct, impose sanctions, or make rules about practitioner conduct under chapter 3.