What is an “earlier concluded examination or review” in the context of patent reexamination?

An “earlier concluded examination or review” is a key concept in determining whether a substantial new question of patentability exists. The MPEP defines it as:

• The original examination of the application which matured into the patent
• The examination of the patent in a reissue application that has resulted in a reissue of the patent
• The examination of the patent in an earlier concluded reexamination or supplemental examination
• The review of the patent in an earlier concluded trial by the Patent Trial and Appeal Board, such as a post-grant review, inter partes review, or covered business method review
• Any other concluded contested proceeding which involved the patent

If the same question of patentability has been decided in an earlier concluded examination or review, it generally cannot form the basis for a new substantial question of patentability in a subsequent reexamination request.

To learn more:

• earlier concluded examination
• earlier concluded review
• substantial new question of patentability
• SNQ
• patent reexamination