Can a substantial new question of patentability (SNQ) be based on old art in supplemental examination?
Yes, a substantial new question of patentability (SNQ) can be based on old art in supplemental examination, provided it is presented or viewed in a new light compared to previous examinations.
The MPEP clarifies: Reliance on old art does not necessarily preclude the existence of a substantial new question of patentability (SNQ) that is based exclusively on that old art.
Furthermore, it states: For example, a SNQ may be based solely on old art where the old art is being presented/viewed in a new light, or in a different way, as compared with its use in the earlier concluded examination(s) or review(s), in view of a material new argument or interpretation presented in the request.
This determination is made on a case-by-case basis, considering how the old art is being presented or interpreted in the new request compared to its previous use in earlier examinations or reviews.
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