Can a requester challenge a basis for granting reexamination?
While a requester can petition against a denial of reexamination, challenging a basis for granting reexamination is more limited. According to MPEP 2648:
“37 CFR 1.927 applies only to challenging a basis for denying of reexamination; it does not apply to challenging a basis for granting of reexamination.”
However, there is a specific circumstance where a requester can challenge part of a granted reexamination:
“If an order granting reexamination includes a determination that one or more alleged SNQs or RLPs did not raise a SNQ or RLP, respectively, the third party requester may (within one month of the mailing date of the order) file a petition under 37 CFR 1.927 for reconsideration of the determination.”
This means a requester can only challenge the part of a granted reexamination that determines certain questions did not raise a substantial new question of patentability (SNQ) or reasonable likelihood of prevailing (RLP).
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