The USPTO Wants to Know Who's Behind Every Patent Reexam. The Public Still Won't.

The U.S. Patent and Trademark Office wants a name on every ex parte reexamination request. In a proposed rule published Wednesday, it would require any third party asking the Office to re-examine a patent to file a statement identifying “all real parties in interest” to the request [1]. Comments are due August 21 [1].

If you’ve ever gotten a patent demand letter, you may know reexam as the challenge you can file without a lawsuit, a trial or your name on it. That last part is what changes.

What the USPTO proposed

The notice, FR Doc. 2026-14793 in docket PTO-P-2025-0545, adds one paragraph to the reexamination rules: new 37 CFR 1.510(b)(7) [1]. It requires “a separate statement by the third party requester identifying all real parties in interest,” submitted “according to the parameters established by the Office” [1]. If the requester asks in writing, the statement stays out of the patent and reexamination files [1].

Three details matter:

• Anonymous prior art survives. The Office would amend 1.501(d) so that plain citations of prior art and written statements can still be filed with no name attached [1]. Only reexam requests lose anonymity.
• Patent owners are exempt. The requirement doesn’t apply when the requester identifies itself as the patent owner [1].
• The Office would see the name, and might use it. The USPTO says it “may need to rely on the confidential real party(ies) in interest information in making determinations,” and will “take reasonable steps” to keep decisions from disclosing it [1].

Here’s how it works today. Section 302 of the Patent Act lets “any person at any time” request reexamination [1]. Section 301(e) lets that person keep their identity out of the patent file, and the 1980 House report explained why: without it, “competitors of a patent owner might be reluctant to cite prior art” [1]. In practice, a company that wants to stay hidden hires a registered practitioner, who files the request and certifies that the client isn’t barred by estoppel [1, 4].

Why the Office says it needs the names

Estoppel. The America Invents Act of 2011 says that once an inter partes review or post-grant review ends in a final written decision, the petitioner, “or the real party in interest or privy of the petitioner,” can’t go back to the Office on any ground it “raised or reasonably could have raised” [3]. The Office can’t check that, it argues, when it doesn’t know who’s actually asking [1].

The USPTO says it is “currently receiving a significant number” of reexam requests aimed at patents already challenged at the Patent Trial and Appeal Board [1]. It doesn’t say how many. Because real-party status “can be a disputed question,” it says a practitioner’s certification, “even if provided in good faith,” could let a barred request through [1].

The Office has been here before. In January 2012 it proposed this same requirement, also numbered 1.510(b)(7), and dropped it in the August 2012 final rule after comments warned of a chilling effect and argued the certification was enough [1]. The new notice says that certification is “no longer deemed sufficient” [1]. It also points to fraud: the USPTO issues show-cause orders when a request looks like a misrepresentation, such as unauthorized practice, and says names would let it act faster [1].

This fits a pattern. IPWatchdog notes that Director John Squires made the Corning Optical decision precedential again in October 2025, restoring the requirement that PTAB petitioners name all real parties in interest, and that the Office de-designated two conflicting decisions in February 2026 [4]. BakerHostetler reports the Office also added a procedure in April that lets patent owners file papers before the Office decides whether a request raises a substantial new question, and that it has since denied a Unified Patents request after the patent owner used it [5].

What this means if you’re the one getting sued

My read, and it’s opinion.

The name doesn’t go public, but it no longer stays with your lawyer. For a startup, anonymity in reexam was rarely about hiding from the Office. It was about not telling a patent holder, or a competitor, that you thought their patent mattered enough to attack. On paper the proposal keeps that. In practice it depends on “robust data security measures” and electronic “parameters” the Office hasn’t published yet [1]. I’d want to see those before calling the confidentiality real.

“Real party in interest” is not a checkbox. The USPTO itself says it’s “a highly fact-dependent question that is determined on a case-by-case basis,” and points requesters to Federal Circuit precedent, including the 2018 Applications in Internet Time decision, plus Board decisions and its October 2025 Trial Practice Guide [1]. Think about who funds a request: a membership group that files challenges, a customer you indemnify, a vendor who indemnifies you, an investor. Each one is a judgment call, and under the new rule the person filing has to make it in writing. A company with outside patent counsel on retainer can absorb that. A 15-person SaaS company looking at its first demand letter has a new question to pay someone to answer.

The small-entity math is the Office’s own. In fiscal 2025 the USPTO got 452 reexam requests, and 174 of them, 38%, paid the small-entity fee [1]. The Office counts those as small entities and still certifies the rule won’t significantly affect them, because the added burden over current practice is “de minimis” and there’s no new fee [1]. The paperwork is small. The legal question behind it isn’t, and the certification doesn’t weigh that.

The bigger change is what it connects to. In October 2025 the USPTO proposed new limits on instituting inter partes review [2]. One of them, proposed 42.108(e)(5), would bar IPR on any claim found patentable in a reexamination requested by “someone other than the patent owner, the patent owner’s real party in interest or privy” [2]. The new notice says plainly that a commenter worried anonymous reexams would undercut that provision, and that naming requesters would let the Office know who was behind a reexam “when determining whether to allow an inter partes review to proceed” [1].

Put those together. If the PTAB proposal is adopted as written, a reexam that confirms a claim could shut the IPR route for every later challenger, not just the one who filed it [2]. That makes reexam a much bigger bet. I’d think hard before filing one as a cheap first move.

One process note. The USPTO says it doesn’t think the Administrative Procedure Act requires notice and comment here, since the change is procedural, but it’s taking comments anyway [1]. It also labels the rule significant under Executive Order 12866 [1]. I’ll take a comment period over a memo, but “we didn’t have to ask” tells you how much the comments are likely to move it.

What I’m watching

• August 21. The comment deadline [1]. The 2012 version died on chilling-effect comments [1]; the question is whether the same arguments land differently now.
• The “parameters.” How the statement is submitted, who at the Office can see it, and whether it ever reaches the patent owner. None of that is in the proposed text [1].
• The PTAB institution rules. Proposed in October 2025 with comments that closed November 17, 2025 [2]. If 42.108(e)(5) is finalized alongside this rule, reexam strategy changes for anyone defending against a patent [1, 2].