2819 Discovery of Possible Material Fraud [R-07.2022]

37 CFR 1.620(g) provides that, if the Office becomes aware, during the course of a supplemental examination or of any ex parte reexamination ordered under 35 U.S.C. 257 as a result of the supplemental examination proceeding, that a material fraud on the Office may have been committed in connection with the patent requested to be examined, the supplemental examination proceeding or any ex parte reexamination proceeding ordered under 35 U.S.C. 257 will continue. The matter will be referred to the U.S. Attorney General in accordance with 35 U.S.C. 257(e).

The Office anticipates that such instances will be rare. Accordingly, the Office does not intend to create a unit to investigate instances of material fraud. If an employee of the Office, such as an examiner in the CRU, becomes aware, during the course of supplemental examination or any reexamination ordered under 35 U.S.C. 257, that a material fraud on the Office may have been committed in connection with the patent subject to a supplemental examination or resulting reexamination ordered under 35 U.S.C. 257, the employee would notify the supervisory official in charge of the section of the Office to which the employee is assigned, such as the Director of the CRU. The supplemental examination proceeding, or any reexamination proceeding ordered under 35 U.S.C. 257, would continue. If the supervisory official concurs, the supervisory official would refer the matter to the Deputy Commissioner for Patents who oversees the Office of Petitions. If the Deputy Commissioner for Patents who oversees the Office of Petitions concurs, the matter would be referred to the Office’s General Counsel, who would determine if the matter should be referred to the U.S. Attorney General in accordance with 35 U.S.C. 257(e).

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