Reexams Are Taking Longer to Reach a First Office Action

More challenges now go through ex parte reexamination than through IPR. The USPTO received 1,009 ex parte requests in fiscal 2026, against about 450 IPR petitions. The Office is still deciding requests on time. What happens after the order is slowing down.

The docket has doubled

ExamPat counted 569 open ex parte reexams at the end of 2024. On September 30, 2026, there were 1,191, just below a peak of 1,210 at the end of July. The USPTO's operational statistics, which also count supplemental examinations and requests in processing, show 1,247. With IPR petitions down to about 450 from 1,400 the year before, Patently-O asked on October 12 whether reexamination "will further absorb challenges that IPR no longer takes."

The Office still decides nearly every request within the statutory three months, but it's using more of that time. Requests filed in the second quarter of 2026 waited a median of 67 days for an order or denial, against 42 days for those filed from 2015 through 2024.

The squeeze is after the order

After the order there's no fixed deadline for the first office action. Volpe Koenig, writing in IAM on October 16, notes that the statute requires "special dispatch" but that this standard "does not provide a predictable completion date." USPTO figures show proceedings waiting between order and first action rose from 154 at the end of December 2025 to 305 on September 30.

Of the reexams ordered in the first quarter of 2026, 58% (166 of 284) had a first examiner action within six months of the order. For reexams ordered in 2024, it was 76% (311 of 408). The median time from order to first action grew from 132 days to 158. The decline began with orders from the second half of 2025.

What it means for litigators

Stay motions. Recent rulings point both ways. On April 24, 2026, Chief Judge Bumb of the District of New Jersey stayed Jiaxing Super Lighting v. All Star Lighting once the USPTO had ordered reexam of all nine asserted patents on the defendant's own requests (opinion). She noted USPTO figures putting average pendency at 25.1 months before any appeal but said that average "is not a crystal ball," and ordered status letters so she can revisit the stay. On January 26, 2026, Judge Choudhury of the Eastern District of New York refused a stay in Fleet Connect v. Forward Thinking Systems, where only four of nine asserted patents were still under review, third parties had filed the requests and the defendant hadn't agreed to be bound (order). On July 7, 2026, in a nonprecedential order, the Federal Circuit denied mandamus against a stay pending reexam in In re Lambeth Magnetic Structures, saying it "will not disturb a stay determination absent a clear and indisputable right to relief" (order).

Expect patent owners to cite the backlog on prejudice, and courts to ask how far along the reexam is.

Case planning. Budget a little over two months to an order and about five more to a first action. A request filed now should expect its first action around mid 2027, possibly later. If you want the examiner's view of the art before claim construction or expert reports, build that time in.

How we measured

A reexam counts as open from its filing date until a certificate issues or the request is denied, terminated, vacated or merged. We left out requests without a granted filing date and a few filed over a year earlier with no decision. Decision time runs from filing to the mailed order or denial. Of 316 second quarter 2026 requests, 314 have been decided, all within three months, and two closed otherwise. The first action is the earliest non-final action, final rejection, ex parte Quayle action or notice of intent to issue a certificate mailed after the order, and counts if mailed within six calendar months. Every first quarter 2026 order had at least 209 days of follow-up. USPTO event records give 78% for 2024, so our figure is the lower one. We checked sample cases for each figure against their documents. Data as of October 26, 2026.

To see the order-to-action timing for the examiner on your case, open ExamPat.