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

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.