USPTO proposes new transparency rules for parties behind patent reexamination challenges

The United States Patent and Trademark Office (USPTO) has proposed requiring third-party requesters for ex parte reexamination to identify all real parties in interest behind a challenge.

The proposed rule, published in the Federal Register on July 22, 2026, would add a new requirement under 37 CFR § 1.510 for a third-party requester to submit a statement identifying the requester and all real parties in interest to the ex parte reexamination request.

The USPTO says the change would give it greater ability to evaluate statutory estoppel provisions and respond to false certifications, misrepresentations, and fraud.

Comments on the proposal must be received by August 21, 2026, making the proposed rule particularly relevant for patent practitioners and other stakeholders ahead of the deadline.

Current rules allow the real party to remain undisclosed

Under the current rules, a third party can seek ex parte reexamination without publicly identifying the real party in interest. A requester can use a registered patent practitioner to submit the request while maintaining the identity of the real party in interest outside the public record.

The current framework requires a certification that the statutory estoppel provisions do not prevent the requester from seeking reexamination.

The USPTO says this creates difficulties where the Office does not know the identity of the requester or other real parties in interest and therefore cannot effectively evaluate whether statutory estoppel applies.

The issue is particularly relevant where a patent has previously been challenged through an inter partes review (IPR) or post-grant review (PGR). Under 35 U.S.C. §§ 315(e)(1) and 325(e)(1), certain petitioners, real parties in interest, and privies may be estopped from pursuing subsequent challenges involving claims and grounds that were raised or reasonably could have been raised in an earlier IPR or PGR that resulted in a final written decision.

The proposed rule would give the USPTO information that it says is necessary to assess whether those estoppel provisions apply to an ex parte reexamination request.

Confidentiality would remain available

Although the proposal would require disclosure to the USPTO, it would not necessarily make the identity of the real parties in interest public.

Under the proposed rule, a third-party requester could make a written request for the statement identifying the real parties in interest to be excluded from the patent and reexamination files and kept confidential.

This creates a distinction between disclosure to the USPTO and public disclosure. The Office would be able to use the information when assessing the reexamination request and other issues arising during the proceeding, while the information could remain outside the publicly accessible file.

The USPTO says the confidentiality provision is intended to preserve the ability of requesters to maintain anonymity from the public while giving the Office greater visibility into the parties behind a challenge.

USPTO cites estoppel and fraud concerns

The USPTO says the proposed requirement would help it determine whether a third-party requester is subject to statutory estoppel and could prevent the Office from proceeding with a reexamination that should be barred.

The Office also identifies false certifications, misrepresentations, and fraud as reasons for the proposed change. It says it has encountered situations in reexamination proceedings involving apparent misrepresentations, including issues concerning unauthorized practice before the USPTO.

According to the Office, knowing the identities of all real parties in interest at the outset would allow it to address these issues more effectively.

The proposal would therefore introduce an identification requirement for ex parte reexamination that is similar in some respects to the real-party-in-interest disclosure requirements already applicable to IPR and PGR petitions, although the proposed confidentiality treatment is different.

Strategic implications for patent disputes

The identity of the party behind a patent challenge can be strategically significant, particularly in competitive patent disputes.

A reexamination request may be filed by one entity while another party has a financial, commercial, or other interest in the outcome. Identifying the real parties in interest can therefore provide the USPTO with a clearer picture of the parties potentially affected by a challenge and whether previous proceedings create estoppel concerns.

The issue can also be significant where corporate relationships or other interests make it difficult to determine who is ultimately behind a patent challenge. The USPTO emphasizes that whether an entity is a real party in interest is a fact-dependent determination that must be assessed on a case-by-case basis.

The proposal could consequently have practical implications for parties considering whether and how to pursue ex parte reexamination, particularly where the identity of the party benefiting from the challenge has previously remained outside the public record.

Proposed rule would add disclosure requirement

The proposed requirement would apply to third-party requests for ex parte reexamination. It would not alter the substantive criteria governing whether a patent is eligible for reexamination.

The USPTO received 452 ex parte reexamination requests in fiscal year 2025. The Office estimates that the additional administrative burden associated with providing the proposed real-party-in-interest statement would be de minimis and would not require an additional fee.

The proposal is now open for public comment, with comments due by August 21, 2026.

For patent owners and prospective reexamination requesters, the proposed rule could mark a significant change in the transparency surrounding challenges to issued patents. While the identity of the parties behind a request could remain confidential from the public, the USPTO would gain a new mechanism for determining who is ultimately behind an ex parte reexamination challenge and whether previous proceedings affect the request.

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