# Same art, second try: 18 of 63 denials cite § 325(d).

Of 63 ex parte reexamination denials mailed May 15 to October 14, 2026 with a readable order, 18 rested on § 325(d), where a challenger brought back art or arguments from its own earlier IPR. The other 45 found no substantial new question. These are floors.

Sources checked October 16, 2026

**18 of 63** readable reexam denials (May 15 to Oct 14, 2026) rested on § 325(d).

## Before you read

A requester’s first reexam request, built on one version of a reference, is denied. The second request reused one reference and used another version of the second. What happened?

- Ordered: the other version cured it
- Denied again under § 325(d)
- Denied for a filing defect

Denied again. In 90/016,466 (Oct 14, 2026), the order cited § 325(d) and In re Vivint.

## The count

Section 325(d) lets the Office refuse a request where “the same or substantially the same prior art or arguments previously were presented to the Office.” 35 U.S.C. § 325(d) We read the order in every reexam denial mailed between May 15 and October 14, 2026 that the Open Data Portal returned. USPTO Open Data Portal

Eight more denials in the window had no readable order and are left out. The query may not return every record, so treat these counts as floors.

## One request, two tries

## Cuts the other way

Same-challenger status didn’t always lead to § 325(d). Two follow-up requests after discretionary IPR denials, 90/016,044 and 90/016,418, were decided on the substantial-new-question test instead. And two requests were ordered after discretionary IPR denials: 90/016,221 and 90/016,531. USPTO Open Data Portal

## The takeaway

Changing the version of a reference is not the same as bringing new art.

## Related stories

- [The same statute opened one door and closed eighteen.](https://postgrantproceeding.com/insights/d19-the-same-statute-opened-one-door-and-closed-eighteen)
- [Anonymous reexam after an IPR decision now needs a statement.](https://postgrantproceeding.com/insights/t04-anonymous-reexam-after-an-ipr-decision-now-needs-a-statement)
- [Ex parte reexam requests about doubled in FY2026.](https://postgrantproceeding.com/insights/t01-ex-parte-reexam-requests-about-doubled-in-fy2026)

## Sources

- S53. USPTO Open Data Portal: patent file-wrapper records for ex parte reexamination (90/ control numbers) and PTAB trial status, as pulled by PostGrantProceeding on Oct. 14 and 15, 2026. https://data.uspto.gov
- S37. In re Vivint, Inc., 14 F.4th 1342 (Fed. Cir. 2021). https://www.cafc.uscourts.gov/opinions-orders/20-1992.opinion.9-29-2021_1841724.pdf
- S13. Federal patent statutes, 35 U.S.C. §§ 253(a), 303(a), 311–315, 317 and 321–325. Reproduced in MPEP Appendix L (currency date stated by the appendix: Jan. 31, 2024). https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html

Precedential decisions bind the Board within their designated scope. Informative decisions show the Office’s reasoning but do not bind the Board. Court opinions are cited for what they decided; later history was checked on the date shown above.

General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.