Expanding the Scope of Ex Parte Reexaminations MidStream

by Dennis Crouch

A new petition by Pactiv (a Reynolds Co.) asks the Supreme Court to consider whether the PTO can expand the scope of an ex parte reexamination beyond the “substantial new question of patentability” identified in the Director’s order granting the reexamination.   Basically, can the reexamination examiner rely upon prior art different from that in the petition.

Question as presented to the Supreme Court:

Whether, because [35 U.S.C. §] 304 requires the Director to issue an order for a reexamination “for resolution of the question,” the “substantial new question of patentability” included in the Director’s order delineates the scope of the ex parte reexamination.

[Pactiv v. Lee petition]  Pactiv argues that the scope of reexaminations were intended to be limited to avoid becoming an “unbridled review system [that] could impose enormous burden and undue harassment on patentees.” (Petition).

Section 304 explains that the PTO Director can order ex parte reexamination after finding that “a substantial new question of patentability affecting . . . is raised.”  The statute goes on to state flatly that the reexamination order should be “for resolution of the question” — i.e., for resolution of the substantial new question raised in the petition.  That part of the statute is clear, however, the statute does not flatly bar modification of the question during the substantive reexamination.

The PTO’s position that allows for shifting rejections appears to stem from Belkin Intl Inc. v. Kappos, 696 F.3d 1379 (Fed. Cir. 2012), a decision involving inter partes reexamination.  Belkin is something of a mixed-bag.  In its decision, the Federal Circuit wrote that the inter partes challenger could not raise new questions of patentability beyond those in the SNQ order.  At the same time, the court also wrote (in dicta) that the PTO may, on its own, raise other issues. The court wrote:

Inter partes reexamination is not totally limited to those issues suggested by the requester that present a substantial new question of patentability. Indeed, the PTO may make any new rejection, as long as that rejection also meets the substantial new question of patentability requirement. See 35 U.S.C. § 303(a) (“On his own initiative, and any time, the Director may determine whether a substantial new question of patentability is raised by patents and publications discovered by him . . . .”). Thus, the scope of reexamination may encompass those issues that raise a substantial new question of patentability, whether proposed by the requester or the Director. . .

Belkin.  Pactiv challenges this dicta portion of Belkin – arguing that it is a misinterpretation of the statute and, in any event, does not apply to ex parte reexamination.  I would agree with Pactiv in its reading of this portion of the statute – if the USPTO wants to raise a new question on its own, the statute provides for a process of ordering reexamination rather than the implicit addition as done here.  At the same time, the availability of amendments and addition of new claims mean that new searches must be available in some form.  See 35 U.S.C. § 305.

For its part in the case, the Federal Circuit affirmed the PTAB determination without opinion (R.36 Affirmance).

= = = = =

The patents at issue in the case are U.S. Patent No. 6,315,921 and U.S. Patent No. 6,395,195.  They relate to an oxygen absorber used in meat packaging.



63 thoughts on “Expanding the Scope of Ex Parte Reexaminations MidStream

  1. 8

    Ned Heller: Patents allowed startups and new technologies to gain a foothold so that competitors could not simply steal them. But the well-heeled and the vested interests do not like the patent system for that very reason. It allows a startup to actually exist.

    Last time I checked its the “well-heeled” investor class who so desperately needs a patent security blankie before they write the checks that make the world turn around and keep us all from becoming Amish. Has the script changed?

    [Re-exams] are also a blatant effort by potential infringers to drive up the cost of patent prosecution so it cannot be afforded by anybody but the well-heeled.

    A couple points. First, everybody is a “potential infringer.” Re-exams exist to make it easier to get rid of junky patents that the PTO missed because it was too busy trying to coddle its stakeholders.

    Second, hardly anyone in this country can afford to prosecute a patent and that’s always been the case. “Driving up the cost of prosecution” changes squat. The cost of preparing and prosecuting patents has been going up since forever. And guess what? So has the number of patent applications. If you really need a patent and you deserve the patent and the super awesome windfall that comes up with your “test online Blu-Ray purchasing software using a proxy server” “innovation”, you will either come up with the money and you get your patent or you don’t really want it.

    The real cost that’s being driven up is the cost of asserting a dubious patent. Pretty much nobody is opposed to that. Does that goal have the ancillary effect of lowering the value of most patents across the board? Sure. But the people who play the patent game can easily afford that haircut. Nobody’s starving. And there’s zilcho detectable effect on “progress promotion” (the system is still chugging along at several hundred thousand patents per year) so no worries on that score either.

    1. 8.2

      MM, would you be adverse to adding to a patent’s term the entire period of an involuntary reexamination?


          Anon, I know. A reexamination can move the effective term of a patent outside the window where the technology is important than the patent is effectively revoked anyway by the simple filing of the re-examination.

          Suspect this is one of the sticks you are always talking about.


            You suspect wrong (in this instance) – but only because I have not commented on the reexamination effect.

            The stick that I have commented upon is directly related to the IPR situation – and what happens AT the moment of initiation – and prior to any SEPARATE decision on the merits.

      1. 8.2.2

        If the claims aren’t substantially changed after the re-exam concludes, you can still collect damages arising from activities during the re-exam. Why do you need additional term?


          MM, look – if the claims are narrowed to avoid the prior art but still read on the accused products of the infringer, there is no justification for excusing past damages. That is the law everywhere in the world but the United States. That is why people outside United States have every incentive to fix their claims by narrowing amendments that clarify the claims over the prior art because doing so does not let infringer is off the hook if the infringer is infringing after the narrowing.


            That is the law everywhere in the world but the United States.

            Interesting. I would have thought otherwise from MaxDrei’s recent posts about forcing applicants to have to write better claims up front because the EPO does not allow such “intermediate re-writing” – of course, MaxDrei made that comment without realizing that here in the States, most “scriviners” DO account for such potentialities with – as Prof. Crouch (snidely?) put it: “patentee included a sufficient number of wobbly-words to avoid limiting the specification.

            link to patentlyo.com

    2. 8.3

      MM Re-exams exist to make it easier to get rid of junky patents that the PTO missed because it was too busy trying to coddle its stakeholders.

      Easier – as in lowering the burden of proof coupled with using broadest reasonable interpretation. To the extent that the infringer can force an amendment by bringing a reexamination, the infringer can save potential means in past damages because of intervening rights.

      I hope you recognize exactly what is going on here.

      1. 8.3.1

        I hope you recognize exactly what is going on here.

        Sure I do. A system that was ridiculously biased towards patentees — including the worst patentees in the history of any patent system on earth — is being fixed. The value of patents generally will necessarily be diminished. That’s not perceived to be a problem because (1) hardly anybody owns patents and (2) the people who do own them can easily afford the inevitable haircut.

        That’s what going on. And yes there’s more to come. A lot more.



          LOL – because the basic Quid Pro Quo was – according to Malcolm – “ridiculously biased towards patentees

          Do you share your h@t red of patents and patentees with your clients, Malcolm?

          May I also suggest (again) that you find a line of work in which you can believe in the work product? The cognitive dissonance that must be raging in your head just has to be twisting you something fierce.


            I don’t h@te patents at all. Patents are useful legal tools when the system is working properly.

            I do h@te junky patents. But pretty much everybody does.


          MM I do not mind a system that narrows claims to what is actually invented over that which is granted by the patent office so long as the infringer remains liable for past damages if they are still infringing after re-examination or after the IPR. That is a system they have in Europe, as far as I know, everywhere else the world, and I think it makes a lot of sense.

  2. 7

    I initially didn’t get what the petitioner thinks it will gain: even if cert is granted and the patents are eventually granted again as reexamined patents, anyone against whom the patents are asserted will simply request IPRs based on the same publications the PTO relied upon to reject the patents during reexamination, and presumably the PTO will kill the patents at that stage.

    Digging around a bit, it appears that the patentee sued a competitor in March 2011, and the competitor then requested ex parte reexam shortly thereafter. So it seems that given the time frame, that defendant/reexamination initiator would be barred from now instituting an IPR.

    But I haven’t checked on the disposition of the infringement suit, if the patents are reinstated perhaps the defendant could file amended pleadings to introduce the publications relied upon by the PTO. Which leaves us with the question, why is the patentee bothering?

  3. 6

    While I agree that the petitioner here ostensibly has a valid point based on the statutory language, if re-exam is regarded as a reopening of the prosecution – which is how the PTO regards it, hence the use of BRI in re-exam – I don’t see how the PTO can NOT consider additional prior art that it discovers on its own. In the Black Light Power Technology case from some years ago, the CAFC affirmed that the PTO could sua sponte withdraw an application from issue, even after payment of the issue fee, if it became aware of a defect in the application (in that case, that the claims contradicted the laws of physics as known, but which could include previously-unconsidered prior art), since the PTO’s ultimate job to issue patents that it believes are valid. There’s no statutory basis for the PTO to issue patents that the PTO thinks are invalid. And I’d be surprised if *this* SCOTUS took up this case, let alone sided with the petitioner, so as to *protect* patents.

    Another way to look at it: suppose that in ex parte reexam the PTO isn’t allowed to consider publications other than those cited by the reexam requestor in its request, even if the PTO becomes aware of other relevant prior art. That means that it’s left to a third party to cite other relevant publications, either in an IPR or in court. That’s a big waste of resources. It’s more efficient to let the PTO cite the additional pubs, and let the patentee deal with those in the ex parte context.

    1. 6.1

      Dan, there is a problem here is or not? Patent term extends from the date of filing for 20 years with extensions for delays in prosecution caused by the patent office. If the patent office withdraws a patent from issue and diddles with it for 10 years without patent term restoration, what the F is this?

    2. 6.2

      The 2nd major problem here is that reexaminations are essentially patent revocation proceedings instituted by 3rd parties doing an end run around the standing requirement. This is not an effort by the patent office to correct anything. This is an effort by the patent office, after they resume prosecution, to get it perfect, when perfection is neither required nor needed unless the patent owner decides himself to take his patent back to fix it in a reissue proceeding. Is also a blatant effort by potential infringers to drive up the cost of patent prosecution so it cannot be afforded by anybody but the well-heeled.

      If a patent is invalid because it actually reads in the prior art, there is very little chance that anybody is going to bring suit on such a patent. If patent is invalid because it is merely obvious, that is a matter of opinion in most cases, not a matter of a prior art.

      The abuses of re-examinations are legendary. Law review articles are written explaining the abuses. And there is a law, called Murphy’s Law. What can go wrong will go wrong. There is a corollary to that law. And that is what can be abuse will be abused. And in the reexamination system not only can be abused, they are abused.

      The patent office is not equipped to detect fraud by petitioners, let alone punish bad actors. There is no penalty for fraud because you do not even know who the petitioner is. The whole system is really rigged against the patent owner big-time in multiple ways. The patent reexamination system, IPRs and everything else about the systems of postgrant patent revocation is abusive to patent owners.

      Once upon a time it was fully understood that a functioning patent system is a vital to American progress and the American economy. Patents allowed startups and new technologies to gain a foothold so that competitors could not simply steal them. But the well-heeled and the vested interests do not like the patent system for that very reason. It allows a startup to actually exist.

      The so-called troll problem arose after Donaldson and State Street Bank. Is a mainly in artifact business method claims and functional claims. The Supreme Court has reacted to the one and soon I believe the Supreme Court or somebody else is going to actually crack down hard on functional claiming. The troll problem is also somewhat relieved by Octane Fitness.

      So setting the troll problem the one side, as it should be, we need to get the patent system back on its feet again by abolishing re-examinations, by abolishing postgrant reviews and by abolishing IPRs. The small inventor, the startup, the University, and anybody who invests in R&D and new ventures simply cannot afford the current patent system.

      1. 6.2.1

        Your spin of history concerning “Tr011s” is more than a bit disturbing.

        Your Windmill Ho has truly blinded you.


          The troll problem is directly related to business methods and to functional claims more than anything else. Some would also say that the troll problem is related to software patents in general. I do not think so, because if software patents are really related to improvements in computers and computer processes, they are not generally infringed. That is why I think Versata was wrongly decided in that Versata came up with a specific way of improving price calculations that was actually copied to by a competitor.

          I have often heard the complaint that the wielder of the troll patent did not actually invent what they accuse of infringing. Now I believe these complaints because they are true. The patents are being wielded to cover the inventions of others because they have broad functional claims that read both on the invention developed by the inventor and upon the inventions of 3rd parties that achieve the same result but with entirely different means or methods.

          I think the Selden patent was example of a functionally claimed invention. Selden had invented one gasoline engine, but claimed every gasoline engine for use in a car. Now that was flatly wrong, but it is hard for people to understand why it was wrong unless one understands the fundamental principle that one can cannot exclude others from practicing anything but equivalents of what one invents. Thus, claims that cover results are fundamentally illegal.

          You can often speak of abstractions. When you talk about claiming abstractions, you really are talking about functional claiming. While functional claiming gives great protection to the invention, it is fundamentally wrong.


            The “Tr011” problem is nothing but propaganda and, gee, it is by the SAME Big Corp types that you claim to be against…..

            Nothing like a little False Flag action…

  4. 5

    Just for fun, I have drafted a one sentence PTO response to this petition. It will, of course, characterize the issue here slightly differently than the patent owner has:
    “Does the statute require, and did Congress intend, for reexamination examiners who are aware of additional prior art invalidating patent claims not to be able to cite or apply that prior art, and instead be required to allow knowingly invalid patent claims [contrary to a primary public duty of the PTO], even new claims introduced for the first time in the reexamination, and even though the patent owner was provided a full due process response opportunity for that additionally cited prior art?”

    1. 5.1

      Paul, the problem is that Examiners conduct searches of the existing claims when they first begin a reexamination instead of relying solely on the arts/grounds of the order. That seems beyond the statute.

      1. 5.1.1

        “See 35 U.S.C. § 303(a) (“On his own initiative, and any time, the Director may determine whether a substantial new question of patentability is raised by patents and publications discovered by him . . . .”

        “discovered by him . . . .”

        Idk Ned, it doesn’t seem that far fetched to believe that the Director may discover some refs through a search at his discretion. Same goes for examiners, who can search for anything they want, literally anytime they want. There seems to be some kind of rumor that persists in the patent community that examiners are somehow bound to never search for anything other than that which they are mandated to search for at a given time. That rumor is entirely false of course.


          6, no doubt. But where does the PTO get the authority to go actively search for art to invalidate an existing patent?




            But where does the PTO get the authority to go actively search for art to invalidate an existing patent?

            Once that “existing patent” is taken back into the Office.

            Ned, I have abundantly shared exactly when that happens with IPRs.

            How are your studies coming along? (your studies of property basics like the bundle of sticks and your studies of takings law…?)


            “But where does the PTO get the authority to go actively search for art to invalidate an existing patent?”

            Merely searching for any given topic does not require “authority” Ned.


                Nobody usually. At least directly. You could make the argument that if it is conducted on office premises through like east etc. then applicants as a whole group “indirectly” pay for it (though certainly not directly). But that’s largely irrelevant as, as you already know, barely anyone directly pays for many things examination related, rather they just pay random fees into a large “pool of money” that goes to fund the office where the fees are labeled with fancy names that make idi ots think they’re paying for some specific thing.

                1. You do realize that the entire Office budget – and thus all Office actions – are paid for by innovators and their patent fees, right 6?

                  The answer is very much that “indirectly as a group.”

                  And you are very wrong about “where the fees are labeled with fancy names that make idi ots think they’re paying for some specific thing” – and we both know why you WANT to believe that (having everything to do with the difference between the job paid for and internal metrics of doing that job paid for). Quite in fact, since there is a mark-up for these “indirect” items, the case is made even more strongly that you should not be trying to obfuscate your own internal metrics with what applicants have paid for. Applicants pay for the actual item – and then more than that!

                  Once again, you display your odd disregard for the very basic notion of the patent system’s Quid Pro Quo.

                2. “And you are very wrong about “where the fees are labeled with fancy names that make idi ots think they’re paying for some specific thing” – and we both know why you WANT to believe that”

                  Um hardly. It all goes “in the pot” and you know it. You get nothing extra when you pay to extend time. You get nothing extra when you pay for more claims. You get nothing extra pretty much ever except for RCE’s and appeals (and some few other things). You know this already anon.

                  I did not “obfuscate anything” you fki ng tw it. It all goes in the pot, you get nothing extra save for a precious few fees. Period.

                3. Um hardly. It all goes “in the pot” and you know it.

                  LOL – you absolutely ARE conflating – and YOU know it.

                  Whether or not “it all goes in the pot” is completely immaterial to whether or not a Quid Pro Quo is established and that applicants pay fees for services.

                  They most certainly do pay fees for services – for ALL services.

                  Likewise, as I mentioned, those fees can be – and in most cases are – jacked up to cover other actions by the Office.

                  So my point is very much in play that applicants have paid for a service – quite apart from ANY internal metrics on your performance of that service.

                  “Thrown into a pot” is merely AFTER the agreement between the applicant and the Office – and that is purely an internal mechanism. You are conflating internal mechanisms with those things not merely internal to the Office.

                  You want to pretend otherwise because you want to think that it is your performance metrics that IS your job, when that is just not so. You STILL need to distinguish how you are measured from WHAT those measurements merely reflect and further, what the applicant has paid for.

                4. “Whether or not “it all goes in the pot” is completely immaterial to whether or not a Quid Pro Quo is established and that applicants pay fees for services.”

                  In this thread anon says that he is a ta rd.

                  “So my point is very much in play that applicants have paid for a service – quite apart from ANY internal metrics on your performance of that service.”

                  Which of course is a “point” that you keep making for no reason since it was never under discussion in the first place. Because you always want to bring discussions around to something you want to talk about, ala social control ala OCPD.

                5. LOL – 6 is backtracking furiously.

                  6, THIS subthread starting with my question at IS a conversation on a specific topic. There is no “changing the topic” by me to talk about the point that we are talking about because it is the very point that we ARE talking about.

                  So your very own “control” tactics of ad honimem name are doubled down with the Malcolm meme of AccusingOthersOfThatWhichYouAreDoing.

                  All that is happening here is that my point is carrying the day and that you have ZERO answer to that point. We BOTH know that there is a very apparent reason why this point is important, and it has everything to do with YOU (both personal and the Royal You) doing your Fn job and not relying on the internal metrics of the performance of that job. Here, there is a very real tie to the extra cost of that NOT doing your Fn job right the first time around being borne by innovators who not only are not getting what they paid for, but are paying MORE than what they directly pay for in order to carry the indirect costs. This INTERNAL inefficiency is directly carried by the fees of the innovators. THAT is a very real point and ties this substhread discussion to the main thread discussion of YOUR post at

                  There is NO “ ala social control ala OCPD” on my end, and quite in fact, it is you attempting to use control to hide the fact that my point carries.

  5. 4

    “New searches” — limited to the added subject matter or a full blown patentability search on all the claims?

    Reexaminations already kill patents not so much because they exist, and that is a problem, but because they take so much time. All the while a reexamination is pending, the patents are unenforceable. Allowing the PTO the unfettered ability to keep searching, keep rejecting, etc., only makes it worse.

    The is something very wrong with the mindset of the PTO, the Federal Circuit and those who actually support reexaminations. They all really do not support the patent system in its current form.

    1. 4.1

      Ned, you are right about reexaminations taking too long, but that has several reasons. First, the unlimited number of new and/or amended claims patent owners can introduce. Secondly, the three step process of reexaminations. First the reexam process in the CRU section of the examining corps, and then an appeal to the PTAB, all before the Fed. Cir. appeal opportunity. Thus often not finally decided until long after a trial date in any parallel litigation. That and other delay reasons were why reexaminations were NOT fully supported as you suggest but rather were intended to be largely replaced by IPRs and PGRs.
      But reexaminations do still have value – especially since they can be used by patent owners themselves for ex parte allowance of old or new claims over additionally cited prior art.

      1. 4.1.1

        Paul, then you would not oppose preventing reexaminations without the consent of the patent owner — if, as you say, they benefit the patent owner?

        Then there are reissues, are there not?

        Reexaminations are not and never were necessary to benefit patent owners.

    2. 4.2

      I tend to agree with you there ned, on the whole that is. But, congress apparently decided that this counterbalancing provision was necessary for whatever reason.

      1. 4.2.1

        6, we can read the old law review articles that describe the reason for reexaminations. They were proposed as a remedy for the patent owner to strength his patent for litigation. That is what Congress thought they were enacting.

      2. 4.2.2

        Yes, and one of the other reasons was the time bar for filing IPRs, which reexaminations do not have. Also, at the time, reexaminations were a lot cheaper. Even with the subsequent huge fee increase they still are for petitioners, since they only get one bite at the apple and no trial, thus less attorney expenses.


          Paul, they are no different than reexaminations. Completely unnecessary.

          I think the truth is obvious – reexaminations were sold to Congress as a method for patent owners to strengthen their patents when he already had such a method in reissues, where the real objective of proponents was not to strengthen patents but to provide patent revocation proceedings outside of infringement trials, basically an end run around the standing requirement to file a lawsuit.


            The reexamination system was sold to Congress as a way for either party to get claims re-examined and either re-allowed or rejected over prior art missed in the examiners application search, thus hopefully removing validity arguments over that prior art from litigation or licensing negotiation disputes. It has done so hundreds of times, but too often too slowly to be of value for litigation that had already started before the reexam was requested.


              Paul, a potential licensee or potential infringer has absolutely no interest in strengthening a patent.

              Outside United States, procedures exist for the patent owner to narrow the claims by simple amendment if they believe that the claims are too broad over the prior art. There is no reexamination. There procedure in the patent office looks to whether the claims are supported, whether the claims are being directed to a new invention, etc. but there is no reexamination and the procedure is relatively quick.

              Why this procedure was not adopted in the United States is clear. What the proponents of re-examinations really wanted was a patent revocation procedure where they could revoke a patent which they believed was invalid – without actually having to go to court and to risk an infringement counterclaim. It is a blatant method of getting around the requirement for standing. It also enormously complicates the ability of a patent owner to enforce his patent because most impecunious patent owners need contingency counsel. Connect the dots. The system was being rigged in favor of big companies against smaller companies and individual inventors.


            Ned, you have forgotten that the Fed. Cir. held that using reissues to test the validity of patent claims over prior art, rather than substantively amending patent claims, is improperly asking for an advisory opinion.


              Paul, I half recall that opinion, and seems wrong given the way the statute is phrased. Do you have a name for the opinion that I can easily find it?


                Anon, thanks: From In re Tanaka, 640 F. 3d 1246 (Fed. Cir. 2011) link to scholar.google.com :

                This court in In re Dien addressed the PTO’s former practice of allowing patentees to file a reissue application for the purpose of having the claims reexamined in light of newly discovered prior art without alleging a defect nor seeking any change in the patent. 680 F.2d 151, 152 (CCPA 1982). The court criticized this practice as permitting a patentee to obtain an advisory opinion from the PTO. Id. at 154. Here, however, there is no dispute that Tanaka has admitted error in the original prosecution, pointing out that he neglected to seek a narrower dependent claim to which he was entitled. In addition, unlike the practice of “no defect” reissue, Tanaka’s reissue application requested changes to his patent in the form of a new dependent claim. Applying for a reissue that adds only narrower claims without amending any of the original claims is not the same as a “no defect” reissue.

                Id. at 1251

                1. It might be interesting to note that the AIA removed a portion of the reissue statute: the part of “without deceptive intent”…

                  Now what do you think THAT change means…?

                2. LOL – no takers on this comment….?

                  Not even those that feel that 1percenter-G-g-g-grifters are running amuck with such “undeserved” patents….?

                  I am shocked – shocked I tell you.

                  (oh wait, which interests pushed for that change – hint: Lemley and co. well, better then not to draw too much attention to that little change then)


              Paul, this seems to be no real dispute here that one can file a reissue to add dependent claims. Obviously the reissue proceeding will test the validity of the independent claims because the applicant will file an appropriate IDS. Kibitzers can also file prior art with their views.


                Yes, but that IS a reissue WITH an amendment of the claims, while a reexamination can be filed without amending claims and without an admission that narrower claims need to be filed.

                1. Paul – the Federal Circuit result is exactly opposite of what you remembered.

                  (maybe you were thinking of the link that I provided: the “en banc” Board…)

                2. Paul, as everyone here can see, reexaminations ARE completely unnecessary to protect patent owners from too broad claims.

  6. 3


    Inter Partes reexam (Belkin) was an entirely different issue.

    The ex parte reexam statutes makes clear that once the threshold is reached, reexam is conducted as a regular examination. (with some limitations)

  7. 2

    This sounds in my discussions with Ned Heller about what happens at the point of the initiation decision (taking some of the sticks from the bundle of property rights) and the patent being back in the Office (the PTAB still being a part of the Office).

  8. 1

    The importance of this case, and thus the fate of this petition, could hinge on what the Supreme Court anticipates doing with IPR. For example, one line of argument seems to be that no non-judicial post-grant proceeding may commence without the consent of the patent owner. Though ostensibly aimed at IPR, that could well implicate reexam as well.

    (BTW, it would seem that making IPR subject to consent of the patent owner – which would rarely be granted, I imagine – would involve less judicial rewriting of the statute than Cooper’s proposed “advisory” role.)

    1. 1.1

      Cooper’s suggestion is stillborn and will not – truthfully, cannot – happen.

      All change to the statute will need to flow through Congress.

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