In recent months, patent reexamination practitioners have spotted an alarming trend. Increasingly, the PTO has refused to grant filing dates to reexamination requests due to alleged noncompliance with filing formalities. That is, the requests are “bounced” for failing to pass an initial, formal hurdle before any review on the merits.

A recent review of PTO reexamination records has revealed that approximately 60% of ex parte requests filed in the third quarter of 2009 were not granted their original filing date, compared with 27%-38% in the preceding three quarters.[1] The sharp rise in the number of noncompliant requests may stem from the PTO’s struggle to keep up with the robust growth of new reexamination filings.[2]