On July 21, 2026, the United States Patent and Trademark Office (USPTO) published a notice of proposed rulemaking (Docket No. PTO-P-2025-0545, RIN 0651-AD94) that would require any third-party requester filing an ex parte reexamination request to submit a separate statement identifying all real parties in interest to the request.[1]
Current Practice
Under existing rules, a third-party requester may file for ex parte reexamination anonymously — not by any affirmative confidentiality provision, but because together, 35 U.S.C. §§ 302, 301(e), and 37 C.F.R. § 1.501 impose no requirement that the requester identify itself, and a real party in interest may file through a registered practitioner to remain anonymous even to the Office. The current rulemaking notes that a 2012 rulemaking implementing the America Invents Act considered (ultimately rejected) a similar real-party-in-interest disclosure requirement, relying instead on the existing § 1.510(b)(6) estoppel certification and general Rule 11.18 certification obligations to maintain compliance without breaking true anonymity. In part, comments related to potential chilling effects of filing requests led to the original rule not being adopted.
What the Proposed Rule Would and Would Not Do
- The rule would add § 1.510(b)(7), requiring third-party requesters to submit a statement identifying the requester and all other RPIs, while allowing if requested in writing such statement to be excluded from the patent and reexamination file and kept confidential from the public.
- The requirement would not keep the identities of the requester and other RPIs confidential to the Office itself, indeed, it would remove true anonymity.
- The requirement would not apply to reexamination requests filed by the patent owner.
- The rule would add a corresponding conforming edit to § 1.501(d) to clarify that anonymous submission remains available only for prior-art and written-statement submissions under that section, not for ex parte reexamination requests under § 1.510. Mere citations of prior art and written statements under § 1.501 would continue to be eligible to be submitted anonymously.
Stated Rationale and Comment Period
The Office states that under the current certification-only approach, it cannot independently verify whether a given requester is barred or estopped from pursuing reexamination on grounds already raised, or that reasonably could have been raised, in a prior inter partes review (IPR) or post-grant review (PGR) that resulted in a final written decision — because it does not know the identity of the requester and all real parties in interest to the request. The proposed statement would require the disclosure of those identities, enabling the Office to evaluate independently whether estoppel applies, and would also assist in addressing suspected misrepresentation in reexamination filings.
The USPTO has characterized this as a rule of agency practice and procedure/interpretive rule exempt from APA notice-and-comment requirements under 5 U.S.C. § 553(b)(A), citing In re Chestek PLLC, 92 F.4th 1105 (Fed. Cir. 2024), among other authority. Notwithstanding that position, the Office is voluntarily accepting public comment through August 21, 2026, and it will be interesting to see whether the same comments related to potential chilling effects will come up now.
Anonymity vs. Confidentiality: A Meaningful Distinction
Under current practice, a requester who wishes to remain unknown can do so completely — the identity is simply never provided to the Office. Under the proposed rule, a requester may still keep its identity out of the public file, but the Office will always know who is behind the request. A few natural considerations follow:
- Non-public information related to the identity of the requester can be used against the requester. Because the Office states it may rely on the confidential RPI information in making decisions during the proceeding, a requester’s identity could factor into agency determinations (e.g., estoppel rulings) even though it never appears in the public file. This could risk effectively unmasking identity meant to be kept confidential, even if it is a disputed point.
- Confidentiality depends on an affirmative request and correct handling. Unlike an anonymous request, requesting confidentiality under the proposed rule requires the requester to ask for it. Moreover, keeping the identity confidential depends on the Office correctly excluding the statement from the file. Administrative or IT error in that process is a risk that does not exist under a true-anonymity regime, because the identity is just never provided.
- Compelled disclosure is a separate question. Confidentiality from the public does not necessarily control whether the identity could be sought through freedom of information act request, a lawsuit filed against the government, discovery in parallel litigation or PTAB proceedings; that remains governed by the rules applicable to those separate proceedings.
Practical Considerations
- Clients that rely on anonymous ex parte reexamination filings should factor this proposal into their planning even before any final rule issues, given the clear direction of travel.
- Under the rule as proposed, anonymity from the public will remain available only by affirmative confidentiality request, and the Office will in all cases know the requester’s identity.
- The more easily underestimated burden is not disclosing a name the client already knows, but making a defensible determination, at the time of filing, of who all the RPIs are, a fact-dependent question the Office says it will assess against prevailing PTAB RPI precedent. For example, there is a changing playing field of RPI precedent with litigation finance and third-party filing companies being attacked in decisions coming out of the district courts and PTAB over the years.
- Parties with an interest in the rulemaking can consider submitting comments by August 21, 2026, via the Federal eRulemaking Portal under Docket No. PTO-P-2025-0545.
Takeaways
Parties weighing an anonymous challenge may want to assess whether there is any advantage to filing under the current rules, before a final rule takes effect.
A request filed now can go through a registered practitioner with no real-party-in-interest disclosure to the Office at all; a request filed later would require that identification (confidential as to the public on request).
But the advantage is narrow: a requester who is in fact estopped gains nothing durable, since the § 1.510(b)(6) certification and the Office’s fraud-mitigation tools still apply. And the NPRM does not say whether a final rule would reach pending matters, so an early filing is no guarantee the requirement never attaches.
In the end it appears that accelerating a filing should turn on the merits and posture of the challenge, not on disclosure avoidance alone.
[1] Federal Register: Requirement To Identify All Real Parties in Interest to a Third Party Request for an Ex Parte Reexamination
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