What happens if new prior art is discovered after the Notice of Intent to Issue Reexamination Certificate (NIRC)?

If new prior art is discovered after the Notice of Intent to Issue Reexamination Certificate (NIRC) has been issued, special procedures must be followed. The MPEP 2257 states:

“If any prior art of record has been newly discovered by the examiner since the Notice of Intent to Issue Reexamination Certificate (NIRC) has been issued, the examiner may reopen prosecution.”

This means that:

• The examiner must determine if the new prior art is material to patentability
• If material, the examiner can withdraw the NIRC and reopen prosecution
• A new Office action will be issued considering the newly discovered prior art
• The reexamination process will continue until a new NIRC can be issued

This procedure ensures that all relevant prior art is considered before the reexamination certificate is finalized.

To learn more:

• NIRC
• prior art discovery
• reexamination procedure