How does the examiner’s decision granting a reexamination request differ from determining patentability?
The examiner’s decision granting a reexamination request focuses on whether there is a substantial new question of patentability (SNQ) or a reasonable likelihood that the requester will prevail (RLP), rather than determining the ultimate patentability of the claims.
According to MPEP 2646:
“In the decision on the request, the examiner does not decide the ultimate question of patentability of the claims. Rather, the examiner only decides whether there is a SNQ/RLP established sufficient to grant the request and order reexamination.”
This means that the examiner’s decision to grant reexamination is based on finding that the request has raised a substantial question or shown a reasonable likelihood of success, but does not involve a full examination of the claims’ patentability at this stage.
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