What standard does the USPTO use to determine if an item of information raises a Substantial New Question (SNQ) of patentability in a supplemental examination?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The USPTO uses the same standard for determining whether an item of information raises a Substantial New Question (SNQ) of patentability in supplemental examination as it does for ex parte reexaminations. According to MPEP 2816:

“The standard for determining whether an item of information properly submitted as part of the request raises a SNQ will be the same as the standard set forth in the MPEP § 2242 for ex parte reexaminations filed under 35 U.S.C. 302: i.e., whether there is a substantial likelihood that a reasonable examiner would consider the item of information important in determining patentability.“

This means that the USPTO will evaluate whether the submitted information is likely to be considered important by a reasonable examiner in determining the patentability of the claims under review.