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?
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.
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