The U.S. Patent and Trademark Office (PTO) has proposed to require that petitions for reexamination of granted patents disclose the identities of the requestors of those petitions. The proposal seems to be designed to reduce the number of times a patent can be challenged on grounds that either have or could have been raised in other proceedings at PTO.
PTO stated in the July 22, 2026, notice that any third party that requests an ex parte reexamination (EPR) would be required to identify itself and all real parties in interest for the request. This would allow PTO to deal more effectively with false certifications, misrepresentations and fraud associated with these requests, the agency stated. Under current practice, requests for EPR need not disclose the identities of the requesting party nor any real parties of interest to the request. Entities that file requests for inter partes reviews (IPRs) and post-grant reviews (PGRs) do not enjoy such leeway under the related regulation at Title 35 of the U.S. Code.
The America Invents Act of 2011 created IPRs and PGRs and included the disclosure stipulation as part of the text of the Act, but EPRs were already part of the statute as of 1980. The congressional record is unclear as to the reason for leaving EPRs untouched in terms of disclosure requirements, but PTO stated that it had engaged in rulemaking in 2012 with the intent to mandate such disclosures for EPRs. The agency ultimately declined to follow through on the disclosure requirement in the 2012 rulemaking due to stakeholder feedback suggesting that such a requirement would have a chilling effect on EPR usage.
PTO stated that it is now concerned that the anonymity provided by EPRs allows petitioners to raise questions about a patent that could have been or already were raised in other administrative challenges of patents, such as IPRs and PGRs. This constitutes an avoidance of the associated estoppel mechanism applied to EPRs, IPRs and PGRs. The agency stated also that it has received a significant number of petitions for EPRs that pertain to patents that were already challenged in IPRs and PGRs, which drives the concern that the anonymity afforded by EPRs has invited abuse of these administrative mechanisms.
The proposed change to PTO’s rules of practice would include assurances that the disclosure of these parties to a petition for EPR would remain confidential. The agency would provide data security measures that would ensure that the identities thus disclosed are not identified in documents used during the EPR proceedings.
PTO stated that it anticipates that this disclosure requirement would improve the agency’s efforts to efficiently administer estoppel provisions and would comport with congressional intent found in the language of the AIA. The agency quoted Sen. Chuck Grassley (R-Iowa) as stating in the congressional record of Feb. 28, 2011 that estoppel provisions generally may “significantly reduce the ability to use post-grant procedures for abusive serial challenges to patents.”
The proposal follows an earlier proposal that would revise the rules of practice for IPRs. PTO proposed in October 2025 to deny institution of an IPR for a specific patent claim if that claim had previously been found patentable after an EPR request that was filed by any entity other than the patent owner or that owner’s real party of interest. According to PTO, a commenter to the docket for the October 2025 rulemaking raised the prospect that an entity would be able to use the EPR process to undercut the intended effect of the proposed revision of IPR procedures, a prospect that apparently prompted PTO to act to foreclose that possibility.