Are amendments or new claims considered during supplemental examination?
No, amendments and new claims presented in copending post-patent Office proceedings are not considered during the supplemental examination process. According to MPEP 2816.01:
“Amendments and/or new claims presented in any copending post-patent Office proceeding for the patent to be examined will not be considered nor commented upon when deciding a request for supplemental examination.”
However, there is an exception to this rule. If a certificate or reissued patent has been issued after reexamination under 35 U.S.C. 257 has been ordered, and this certificate or reissued patent amends the claims for which reexamination was ordered, then the reexamination should be based on the amended claims. This is because the certificate becomes part of the patent as of its issue date, or the original patent is replaced by the reissued patent.
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