USPTO Creates Pre-Order Response Procedure for Ex Parte Reexamination—Patent Owners Get 30 Days to Contest SNQ Before Order Issues

The USPTO introduced a new Pre-Order Response Procedure for ex parte reexamination effective April 1, 2026. Under an Official Gazette Notice signed by Director Coke Squires, patent owners may now submit a written response of up to 30 pages arguing against the existence of a substantial new question of patentability (SNQ) before the USPTO issues an order to reexamine. The window to file is 30 days from service of the reexamination request.

Under the existing ex parte reexamination framework, a patent owner’s first formal opportunity to respond came only after the USPTO had already determined that a substantial new question existed and issued a reexamination order. The new procedure inserts a pre-order stage: once a reexamination request is served on the patent owner, the patent owner may argue—before any order is issued—that the prior art cited by the requester does not raise an SNQ. If persuasive, this response could lead the USPTO to deny the request before reexamination proceedings begin.

PTAB IPR Decline

PTAB Petition Collapse

The timing of this procedural reform is significant. Ex parte reexamination requests surged 157.1% in Q1 2026 compared to Q1 2025, reaching the second-highest quarterly volume on record, according to data published by Unified Patents. The surge is widely attributed to the dramatic decline in IPR filings—down 64.2% in Q1 2026—driven by PTAB’s expanded use of discretionary denials. As patent challengers migrate from PTAB proceedings to ex parte reexamination, the volume of reexamination requests has grown to levels that create pressure on both the USPTO and patent owners.

The SNQ standard governs whether reexamination begins at all. To order reexamination, the USPTO must determine that the submitted prior art raises a substantial new question of patentability—one not already considered during original prosecution or prior reexamination. If no SNQ exists, the request is denied. The new pre-order procedure allows patent owners to marshal arguments against the SNQ finding before reexamination is set in motion, potentially short-circuiting a proceeding that would otherwise impose cost, delay, and reputational exposure on the patent holder.

For practitioners, the new procedure represents a meaningful expansion of patent owner rights at the pre-institution stage—a concern that has gained prominence as the volume of reexamination requests has grown. The 30-page limit provides sufficient space for substantive legal argument, including claim-by-claim analysis and comparison of cited art against the prosecution history, while preventing the pre-order stage from becoming a full-scale briefing exercise. The 30-day window is tight, however, and patent owners with large portfolios or those caught off-guard by an unexpected reexamination request will need rapid internal triage processes to respond effectively.

The reform also reflects a broader shift in USPTO policy toward procedural balance in post-grant proceedings. The same period that saw discretionary denials rise at PTAB has brought increased scrutiny of procedural fairness across all patent challenge mechanisms. The new pre-order procedure parallels, in some respects, the PTAB’s existing pre-institution mechanisms and may be seen as an effort to extend comparable procedural protections to ex parte reexamination—a proceeding that, unlike IPR, does not permit the patent owner to participate as a full party.

Director Squires’ direct involvement in signing the Official Gazette Notice signals the significance the USPTO attaches to this change. With ex parte reexamination volume at near-record levels and IPR use declining sharply, the procedural architecture of ex parte reexamination is now a front-line issue for U.S. patent practitioners on both sides of patent validity disputes.