Supplementary Examination

A unique aspect of the U.S. patent system, as modified by the AIA, will be a procedure known as Supplemental Examination. This procedure allows a patent owner to request Supplemental Examination of a patent to permit consideration, reconsideration or correction of information that may be relevant to the validity of the patent. This may or may not lead to reexamination of the patent, but in either case it precludes a later charge of inequitable conduct for failure to have informed the patent office of that information. Such charges, unique to U.S. patent law, have contributed significantly to the cost and uncertainty of patent infringement litigation in the U.S. Thus the new Supplemental Examination procedure may be significant whenever there is a risk that inequitable conduct will be raised as a defense to a charge of patent infringement. If the Office becomes aware of fraud during the Supplemental Examination proceedings, it must refer the matter to the Attorney General.

For more on Supplemental Examination, see U.S.P.T.O. Issues Final Rules on AIA Supplemental Examination.