In only its third and fourth Informative Opinions of 2011, the Board of Patent Appeals and Interferences (BPAI) considered whether it has jurisdiction to hear refusal of an inter partes reexamination request. In Belkin Int’l v. Optimumpath and Abbott Diabetes Care, Inc. v. Patent of Dexcom, Inc., the BPAI ruled that it does not have jurisdiction to consider errors in an examiner’s decision to deny a third party’s request for reexamination because it raises no substantial new question of patentability. A third party requestor can petition such an unfavorable decision to the Director under 37 C.F.R. §1.927, but the Director’s decision is final and non-appealable. These cases serve as a reminder that third party requestors in inter partes reexamination proceedings should take care to be thorough and vigilant in their requests before the Examiner and the Director to reduce the chances of their request being denied, since there is no opportunity for appeal beyond the Director to the BPAI or other authority.
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