The AIA created 35 USC § 257 to provide a new procedure called “supplemental examination” in an effort to provide patentees an opportunity to inoculate their patents against unenforceability arising out of certain charges of inequitable conduct (but not actual fraud). In essence, in a supplemental examination proceeding, the patentee requests that the USPTO consider, reconsider, or correct information believed to be relevant to the patent. The USPTO either agrees that there is a substantial question of patentability and orders an ex parte reexamination, or the USPTO finds that there is no substantial question of patentability and the matter is closed. As of September 16, 2012, supplemental examination may be requested on any patent, including those patents granted before September 16, 2012.

For a review of the final rules governing the new patent trial proceedings (including inter partes review and post-grant review) and/or for a review of other key provisions relating to an assignee’s ability to file and prosecute patent applications as well as other key AIA changes, please see the August 14, 2012 Legal News Alerts available here and here, respectively.