Question 1

What happens if no Substantial New Question of Patentability is raised?

Accepted Answer

If the supplemental examination certificate states that no Substantial New Question of Patentability (SNQ) is raised, no further action is taken. As stated in MPEP 2817:

"If, however, the supplemental examination certificate states that no substantial new question of patentability is raised in the request, then an ex parte reexamination proceeding will not be initiated at the conclusion of the supplemental examination proceeding."

This means that if the information provided in the supplemental examination request does not raise any substantial new questions about the patent's validity, the process ends with the issuance of the certificate, and no further examination of the patent is conducted.

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Question 2

What happens if no substantial new question of patentability is found in a supplemental examination?

Accepted Answer

If the USPTO determines that no substantial new question of patentability (SNQ) is raised by the items of information in a supplemental examination request, the following occurs:

The Office will issue a supplemental examination certificate stating that no SNQ is raised.
No ex parte reexamination will be ordered.
The supplemental examination proceeding will be concluded.

As stated in MPEP 2816:

"If the Office determines that no substantial new question of patentability is raised, the supplemental examination certificate will so state."

This determination effectively concludes the supplemental examination process without further action.

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Question 3

What prior art can be used in determining a substantial new question of patentability?

Accepted Answer

The determination of a substantial new question of patentability or a reasonable likelihood that the requester will prevail can be based on any prior art patents or printed publications. As stated in MPEP 2644:

"The determination of whether or not 'a substantial new question of patentability' or 'a reasonable likelihood that the requester will prevail' is present can be based upon any prior art patents or printed publications."

This means that examiners are not limited to the prior art cited in the request and can use other sources to make their determination.

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Question 4

Can a substantial new question of patentability (SNQ) be based on old art in supplemental examination?

Accepted Answer

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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Question 5

Can the USPTO independently re-open prosecution of a pending application?

Accepted Answer

Yes, the USPTO retains the authority to independently re-open prosecution of a pending application, despite the limitations on third-party submissions. This authority is not affected by the provisions of 35 U.S.C. 122(c) and (e).

The MPEP clarifies: "The provisions of 35 U.S.C. 122(c) and (e) limit a third party's ability to protest, oppose the grant of, or have information entered and considered in an application pending before the Office. However, these provisions do not limit the Office's authority to independently re-open the prosecution of a pending application on the Office's own initiative and consider information deemed relevant to the patentability of any claim in the application."

This authority was affirmed in the case of Blacklight Power, Inc. v. Rogan, 295 F.3d 1269, 63 USPQ2d 1534 (Fed. Cir. 2002).

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Question 6

What is the purpose of the "substantial new question of patentability" requirement in reexamination?

Accepted Answer

The "substantial new question of patentability" requirement serves to protect patentees from unnecessary reexaminations. MPEP 2244 explains:

"The substantial new question of patentability requirement protects patentees from having to respond to, or participate in unjustified reexaminations."

This requirement ensures that reexaminations are only conducted when there is a legitimate basis for questioning the validity of the patent, based on new or newly applied prior art.

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Question 7

What is a substantial new question of patentability in ex parte reexamination?

Accepted Answer

A substantial new question of patentability (SNQ) is a key factor in determining whether an ex parte reexamination will be ordered. According to MPEP 2246, the examiner must identify at least one SNQ and explain how the prior art raises such a question. The decision should point out:

The prior art that adds new teaching to at least one claim
What that new teaching is
The claims the new teaching is directed to
That the new teaching was not previously considered or addressed
That the new teaching is important in deciding claim allowance

As stated in the MPEP, "The examiner should indicate, insofar as possible, their initial position on all the issues identified in the request or by the requester (without rejecting claims) so that comment thereon may be received in the patent owner's statement and in the requester's reply."

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Question 8

How can reproductions be submitted through EFS-Web for international design applications?

Accepted Answer

Reproductions for international design applications can be submitted through EFS-Web as PDF or JPEG files. The process and requirements are as follows:

Reproductions can be submitted as single-page PDF or JPEG files using the "Attach Reproductions" section of the "Attach Documents" screen.
Alternatively, PDFs (including multi-page PDFs) can be attached using the "Attach Documents other than Reproductions" section.
Each image file attached through the "Attach Reproductions" section should contain only one view of the design.
The system will prompt users to assign a design and view number to each file attached under the "Attach Reproductions" section.

According to the MPEP, Attaching compliant reproductions via the "Attach Reproductions" section, rather than the "Attach Documents other than Reproductions" section, may help to avoid incurring additional per page publication fees that might otherwise be required by the International Bureau.

It's important to note that EFS-Web has certain limitations and checks in place:

PDF or JPEG files submitted via the "Attach Reproductions" section cannot exceed 2 megabytes in size.
For JPEGs, warnings are provided if image resolution and dimension requirements are not met.
For PDFs in the "Attach Reproductions" section, only single-page files are allowed.

Users should consult the EFS-Web Quick Start Guide: International Design Application (Hague) for detailed instructions on filing through the USPTO as an office of indirect filing.

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What happens if no Substantial New Question of Patentability is raised?

What happens if no substantial new question of patentability is found in a supplemental examination?

What prior art can be used in determining a substantial new question of patentability?

Can a substantial new question of patentability (SNQ) be based on old art in supplemental examination?

Can the USPTO independently re-open prosecution of a pending application?

What is the purpose of the “substantial new question of patentability” requirement in reexamination?

What is a substantial new question of patentability in ex parte reexamination?

Detectability is a Key Factor for Patent Value

What Does A Quality Patent Look Like?

How can reproductions be submitted through EFS-Web for international design applications?