EPR Reexamination Success

Defeating Two Section 102 Attacks in Ex Parte Reexamination

ZYL Law Firm defended the patent owner in ex parte reexamination Control No. 90/019,857 by defeating two different anticipation theories based on Amazon listings. The defense first disqualified the KCC Store listing under the inventor-origin grace-period exception, then defeated a new Virabit/Keepa theory by exposing a missing evidentiary link between price metadata and the historical visual disclosure required for design-patent anticipation.

EPR Control No. 90/019,857 Two Section 102 attacks defeated Reexamination Certificate: March 27, 2026 USPTO Public Record
This case study is based on public USPTO records and generalized attorney work-product descriptions. Party names, product sourcing details, and confidential enforcement strategy are intentionally omitted.

Challenge

The USPTO ordered ex parte reexamination on April 3, 2025. The first non-final action rejected the claim under Section 102 based on a KCC Store Amazon listing. After that rejection was overcome, the examiner issued a second non-final action using a different theory: a Virabit Amazon listing dated through Keepa price-history data.

The case required more than a design-similarity argument. It required a two-stage evidentiary defense: first proving that the KCC disclosure came from the inventor's own company within the AIA one-year grace period, and then showing that a price-history graph and current Amazon images could not prove the specific visual content publicly accessible in 2021.

102Two anticipation theories overcome
EvidenceGrace period, ownership, and web-publication record
CertificateReexamination certificate issued

Professional Defense

  • For the KCC Store rejection, the response invoked the AIA Section 102(b)(1)(A) inventor-origin grace-period exception rather than relying only on visual-difference arguments.
  • The evidentiary package tied the Amazon listing to the inventor's own company using the inventor declaration, Amazon Seller Central records, the public KCC direct storefront, USPTO trademark ownership records, and the ASIN creation date.
  • The second non-final action expressly acknowledged that the first response and affidavit overcame the KCC rejection; the examiner then shifted to a new Virabit reference supported by Keepa price-history data.
  • For the Virabit rejection, the response attacked the prima facie case: Keepa may track price or ASIN history, but it does not establish what product images or visual design appeared on Amazon on the alleged 2021 date.
  • The response used the dynamic nature of Amazon listings, the absence of Wayback archival evidence, MPEP requirements for specific web-publication content, and design-patent visual-disclosure principles to break the evidentiary chain.

Result

After the second defense, the USPTO issued a Notice of Intent to Issue a Reexamination Certificate on February 10, 2026, followed by a Reexamination Certificate on March 27, 2026. The result shows ZYL's ability to handle complex OA-style disputes where patentability turns on evidence admissibility, web-publication proof, statutory exceptions, and design-patent anticipation standards.