How does the examiner’s decision granting a reexamination request differ from determining patentability?

The examiner’s decision granting a reexamination request focuses on whether there is a substantial new question of patentability (SNQ) or a reasonable likelihood that the requester will prevail (RLP), rather than determining the ultimate patentability of the claims.

According to MPEP 2646:

“In the decision on the request, the examiner does not decide the ultimate question of patentability of the claims. Rather, the examiner only decides whether there is a SNQ/RLP established sufficient to grant the request and order reexamination.”

This means that the examiner’s decision to grant reexamination is based on finding that the request has raised a substantial question or shown a reasonable likelihood of success, but does not involve a full examination of the claims’ patentability at this stage.

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Topics: MPEP 2600 - Optional Inter Partes Reexamination, MPEP 2646 - Decision Ordering Reexamination, Patent Law, Patent Procedure
Tags: patent claims, patentability, Reasonable Likelihood, Reexamination Decision, Substantial New Question