On April 1, 2026, the USPTO issued a notice announcing a new type of filing in reexaminations available to patent owners before the Office decides whether to order a reexamination. The new filing allows patent owners to respond to reexamination requests on the merits and explain to the Office why a request does not raise a substantial new question of patentability. The patent owner has 30 days from the date of service of the request to submit a maximum-30-page response. The requester of the reexamination is only permitted to file a reply in limited circumstances, including “to address alleged misrepresentations of fact or law or other improper arguments that materially impede the determination of a substantial new question.”
Previously, under 37 CFR 1.530(a), patent owners were not permitted to file a response before the Office ordered a reexamination. Director John A. Squires suspended this rule, citing his authority under 37 CFR 1.183 to do so in “extraordinary situations, when justice requires.” The Office will now consider patent owners’ responses in addition to the request when deciding whether to order the reexamination. This new procedure does not change any other filings permitted to patent owners after the Office orders a reexamination.
Over the last year, there has been a significant decline in the number of petitions the USPTO instituted for inter partes review, with only 28.2% of petitions instituted between October 2025 and February 2026. Instead, many parties looking to challenge the validity of a patent have opted to file reexamination requests. During the first quarter of 2026, the Office received 223 reexamination requests, more than double the number of reexamination requests filed during the first quarters of 2024 (108 requests) and 2025 (109 requests). This sharp increase has already created delays, with the average reexamination period increasing from 18 months at the end of 2025 to 21 months in the first quarter of 2026.
According to USPTO data, 92.7% of all reexamination requests have been granted. A majority of reexaminations result in changes to the challenged patent, with 63.8% resulting in narrowed claims and 26.4% resulting in all claims being cancelled. Only 9.8% of reexamined patents have all claims confirmed. These outcomes, which strongly favor challengers, may help explain why parties are increasingly turning to reexamination as a strategy, particularly as the USPTO has become significantly less likely to institute inter partes review.
The USPTO’s new procedures aim to rebalance outcomes in reexamination proceedings and manage the growing number of requests. Patent owners will now have an opportunity to respond to the merits of a request before the Office decides whether to initiate a reexamination proceeding. The response is limited to the substantial new questions of patentability raised in the reexamination request. Patent owners will still be able to argue that a request should be denied on discretionary grounds after the reexamination has been ordered, in cases where “the same or substantially the same prior art or arguments previously were presented to the Office.”