MPEP § 2242 — MPEP § 2242
Current through: 2022-07-01

2242-Criteria for Deciding Request Filed under 35 U.S.C. 302 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Patent Laws, Regulations, Policies & Procedures 

 
 Manual of Patent Examining Procedure 

 Chapter 2200 

 Section 2242 
 

 
 
 
 
 
 2242 Criteria for Deciding Request Filed under 35 U.S.C.
 302 [R-10.2019]
 
 I. SUBSTANTIAL NEW QUESTION OF PATENTABILITY The presence or absence of “a substantial new question of
 patentability” determines whether or not reexamination is ordered. The meaning and scope
 of the term “a substantial new question of patentability” is not defined in the statute
 and must be developed to some extent on a case-by-case basis, using the case law to
 provide guidance as will be discussed in this section. 
 

 If the prior art patents and printed publications raise a substantial
 question of patentability of at least one claim of the patent, then a substantial
 new question of patentability as to the claim is present,
 unless the same question of patentability has already been: (A) decided in a final
 holding of invalidity by a federal court in a decision on the merits involving the
 claim, after all appeals; (B) decided in an earlier concluded examination or review of
 the patent by the Office; or (C) raised to or by the Office in a pending reexamination
 or supplemental examination of the patent. If the request for reexamination includes
 issues involving 35 U.S.C. 325(d) , the examiner must
 bring such issues to the attention of the appropriate SPRS or the Director of the CRU.
 Inquiries from the public regarding the treatment of issues involving 35 U.S.C.
 325(d) in ex parte reexaminations should be
 referred to OPLA.
 

 An earlier concluded examination or review of the patent
 is: (A) the original examination of the application which matured into the patent; (B)
 the examination of the patent in a reissue application that has resulted in a reissue of
 the patent; (C) the examination of the patent in an earlier concluded reexamination or
 supplemental examination; (D) the review of the patent in an earlier concluded trial by
 the Patent Trial and Appeal Board, such as a post-grant review, inter
 partes review, or covered business method review of the patent; or (E) any
 other contested Office proceeding which has been concluded and which involved the
 patent. The answer to the question of whether a “substantial new question of
 patentability” exists, and therefore whether reexamination may be had, is decided by the
 examiner, and the examiner’s determination may be reconsidered:
 

 (a) If reexamination is denied – as set forth in
 MPEP §
 2248 .
 

 (b) If reexamination is granted – as set forth in
 MPEP § 2246,
 subsection II . 
 

 A prior art patent or printed publication raises a substantial question
 of patentability where there is a substantial likelihood that a reasonable examiner
 would consider the prior art patent or printed publication important in deciding whether
 or not the claim is patentable. If the prior art patents and/or publications would be
 considered important, then the examiner should find “a substantial new question of
 patentability” unless the same question of patentability has already been decided as to
 the claim in a final holding of invalidity by a federal court or by the Office in an
 earlier concluded examination or review of the patent, or unless the same question of
 patentability has been raised to or by the Office in a pending reexamination or
 supplemental examination of the patent. For example, the same question of patentability
 may have already been decided by the Office where the examiner finds the additional
 (newly provided) prior art patents or printed publications are merely cumulative to
 similar prior art already fully considered by the Office in an earlier concluded
 examination or review of the claim. 
 

 For “a substantial new question of patentability” to be present, it is
 only necessary that: (A) the prior art patents and/or printed publications raise a
 substantial question of patentability regarding at least one claim, i.e., the teaching
 of the (prior art) patents and printed publications is such that a reasonable examiner
 would consider the teaching to be important in deciding whether
 or not the claim is patentable; and (B) the same question of patentability as to the
 claim has not been decided by the Office in an earlier concluded examination or review
 of the patent, raised to or by the Office in a pending reexamination or supplemental
 examination of the patent, or decided in a final holding of invalidity (after all
 appeals) by a federal court in a decision on the merits involving the claim. If a
 reexamination proceeding was terminated/vacated without resolving the substantial
 question of patentability question, it can be re-presented in a new reexamination
 request. It is not necessary that a “prima facie” case of
 unpatentability exist as to the claim in order for “a substantial new question of
 patentability” to be present as to the claim. Thus, “a substantial new question of
 patentability” as to a patent claim could be present even if the examiner would not
 necessarily reject the claim as either fully anticipated by, or obvious in view of, the
 prior art patents or printed publications. As to the importance of the difference
 between “a substantial new question of patentability” and a “prima
 facie” case of unpatentability see generally In re
 Etter, 756 F.2d 852, 857 n.5, 225 USPQ 1, 4 n.5 (Fed. Cir. 1985). 
 

 Note that the clarification of the legal standard for determining
 obviousness under 35
 U.S.C. 103 in KSR International Co. v. Teleflex Inc.
 (KSR), 550 U.S. 398, 82 USPQ2d 1385 (2007) does not alter the legal
 standard for determining whether a substantial new question of patentability exists. See
 the discussion in MPEP §
 2216 .
 

 Where a second or subsequent request for reexamination of a patent is
 made before the conclusion of an earlier filed reexamination proceeding pending
 (ongoing) for that patent, the second or subsequent request for reexamination may
 provide information raising a substantial new question of patentability with respect to
 any new or amended claim which has been proposed under 37 CFR 1.530(d) in
 the ongoing pending reexamination proceeding. However, in order for the second or
 subsequent request for reexamination to be granted, the second or subsequent requester
 must independently provide a substantial new question of patentability which is
 different from that raised in the pending reexamination for the
 claims in effect at the time of the determination . The decision on the second
 or subsequent request is based on the claims in effect at the time of the determination
 ( 37 CFR
 1.515(a) ). Thus, the second or subsequent request must be directed
 to the claims of the patent, as modified by any disclaimer, or by any reexamination
 certificate that has issued as of the time of the determination. If a “different”
 substantial new question of patentability is not provided by the second or subsequent
 request for the claims in effect at the time of the determination, the second or
 subsequent request for reexamination must be denied since the Office is only authorized
 by statute to grant a reexamination proceeding based on a substantial new question of
 patentability “affecting any claim of the patent.” See 35 U.S.C. 303 .
 Accordingly, there must be at least one substantial new question of patentability
 established for the existing claims in the patent in order to grant reexamination.
 

 Once the second or subsequent request has provided a “different”
 substantial new question of patentability based on the claims in effect at the time of
 the determination, the second or subsequent request for reexamination may also provide
 information directed to any proposed new or amended claim in the pending reexamination,
 to permit examination of the entire patent package. The information directed to a
 proposed new or amended claim in the pending reexamination is addressed during the later
 filed reexamination (where a substantial new question is raised in the later
 reexamination for the existing claims in the patent), in order to permit examination of
 the entire patent package. When a proper basis for the subsequent reexamination is
 established, it would be a waste of resources to prevent addressing the proposed new or
 amended claims, by requiring parties to wait until the certificate issues for the
 proposed new or amended claims, and only then to file a new reexamination request
 challenging the claims as revised via the certificate. This also prevents a patent owner
 from simply amending all the claims in some nominal fashion to preclude a subsequent
 reexamination request during the pendency of the reexamination proceeding.
 

 II. POLICY IN SPECIFIC SITUATIONS In order to further clarify the meaning of “a substantial new question
 of patentability” certain situations are outlined below which, if present, should be
 considered when making a decision as to whether or not “a substantial new question of
 patentability” is present. Any issues involving 35 U.S.C.
 325(d) raised in the request must be referred to the examiner's
 SPRS or the director of the CRU. Any questions from the public regarding procedures in
 regard to issues involving 35 U.S.C. 325(d) should be referred
 to the Office of Patent Legal Administration (OPLA).
 

 A. Prior Favorable Decisions by the U.S. Patent and Trademark Office (Office)
 on the Same or Substantially Identical Prior Art in Relation to the Same
 Patent A “substantial new question of patentability” is
 not raised by prior art presented in a reexamination
 request if the Office has previously considered (in an earlier concluded examination
 or review of the patent) the same question of patentability as to a patent claim
 favorable to the patent owner based on the same prior art patents or printed
 publications. In re Recreative Technologies, 83 F.3d 1394, 38
 USPQ2d 1776 (Fed. Cir. 1996). 
 

 In deciding whether to grant a request for reexamination of a
 patent, the examiner should check the patent’s file history to ascertain whether any
 of the prior art now advanced by requester was previously cited/considered in an
 earlier concluded examination or review of the patent or has been raised to or by the
 Office in a pending reexamination or supplemental examination of the patent. For the
 sake of expediency, such art is referred to as “old art” throughout, since the term
 “old art” was coined by the Federal Circuit in its decision of In re
 Hiniker, 150 F.3d 1362,1365-66, 47 USPQ2d 1523, 1526 (Fed. Cir.
 1998).
 

 In a decision to order reexamination made on or after November 2,
 2002, reliance on old art does not necessarily preclude the existence of a
 substantial new question of patentability that is based exclusively on that old art.
 See Public Law 107-273, 116 Stat. 1758, 1899-1906 (2002), which expanded the scope of
 what qualifies for a substantial new question of patentability upon which a
 reexamination may be based. Determinations on whether a substantial new question of
 patentability exists in such an instance shall be based upon a fact-specific inquiry
 done on a case-by-case basis. For example, a substantial new question of
 patentability 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 examination(s), in view of a material new argument or interpretation
 presented in the request. Such material new argument or interpretation may be based
 solely on claim scope of the patent being reexamined. 
 

 When it is determined that a substantial new question of
 patentability based solely on old art is raised, form paragraph
 22.01.01 should be included in the order for
 reexamination.
 

 ¶ 22.01.01 Criteria for Applying 
 "Old
 Art"
 
 
 as Sole Basis for Reexamination
 

 The above [1] is based solely on patents and/or printed
 publications already cited/considered in an earlier concluded examination or review of the
 patent being reexamined, or has been raised to or by the Office in a pending reexamination or
 supplemental examination of the patent. On November 2, 2002, Public Law 107-273 was enacted.
 Title III, Subtitle A, Section 13105, part (a) of the Act revised the reexamination statute by
 adding the following new last sentence to 35 U.S.C. 303(a) and 312(a) :
 

 
 "The existence of a substantial new question of patentability is
 not precluded by the fact that a patent or printed publication was previously cited by or
 to the Office or considered by the Office."
 

 
 For any reexamination ordered on or
 after November 2, 2002, the effective date of the statutory revision, reliance on previously
 cited/considered art, i.e., “old art,” does not necessarily preclude the existence of a
 substantial new question of patentability (SNQ) that is based exclusively on that old art.
 Rather, determinations on whether a SNQ exists in such an instance shall be based upon a
 fact-specific inquiry done on a case-by-case basis.
 

 In the present instance, there exists
 a SNQ based solely on [2] . A discussion of the specifics now
 follows:
 

 [3] 

 Examiner Note:
 
 1. In bracket 1, insert 
 "substantial new question of patentability"
 
 
 if the present form
 paragraph is used in an order granting reexamination (or a TC or CRU Director’s decision
 on petition of the denial of reexamination). If this form paragraph is used in an Office
 action, insert 
 "ground of
 rejection."
 
 
 
 

 2. In bracket 2, insert the old art
 that is being applied as the sole basis of the SNQ. For example, 
 "the patent to J. Doe"
 
 
 or
 
 "the patent to J. Doe when taken with the
 Jones publication"
 
 
 or 
 "the combination of the patent to J. Doe and the Smith
 publication"
 
 
 could be inserted. Where more than one SNQ is
 presented based solely on old art, the examiner would insert all such bases for
 SNQ.
 

 3. In bracket 3, for each basis identified in bracket 2, explain how
 and why that fact situation applies in the proceeding being acted on. The explanation
 could be for example that the old art is being presented/viewed in a new light, or in a
 different way, as compared with its use in the earlier examination(s), in view of a
 material new argument or interpretation presented in the request. See Ex parte
 Chicago Rawhide Mfg. Co., 223 USPQ 351 (Bd. Pat. App. & Inter.
 1984).
 

 4. This form paragraph is only used
 the first time the 
 "already
 cited/considered"
 
 
 art is applied, and is not repeated for the
 same art in subsequent Office actions.
 
 
 

 See MPEP § 2258.01 for a discussion of the use of “old art” in
 the examination stage of an ordered reexamination (as a basis for rejecting the
 patent claims).
 

 B. Prior Adverse Decisions by the Office on the Same or Substantially
 Identical Prior Art in the Same Patent A prior decision adverse to the patentability of a claim of a patent
 by the Office based upon prior art patents or printed publications would usually mean
 that “a substantially new question of patentability” is present. Such an adverse
 decision by the Office could, for example, arise from a reissue application which was
 abandoned after rejection of the claim and without disclaiming the patent claim.
 

 C. Prior Adverse Reissue Application Final Decision by the Director of the
 USPTO or the Board Based Upon Grounds Other Than Patents or Printed
 Publications Any prior adverse final decision by the Director of the USPTO or the
 Patent Trial and Appeal Board or Board of Patent Appeals and Interferences (Board),
 on an application seeking to reissue the same patent on which reexamination is
 requested will be considered by the examiner when determining whether or not a
 “substantial new question of patentability” is present. However, to the extent that
 such prior adverse final decision was based upon grounds other than patents or
 printed publications, the prior adverse final decision will not be a basis for
 determining whether or not a “substantial new question of patentability” is present.
 
 

 D. Prior Favorable or Adverse Decisions on the Same or Substantially Identical
 Prior Art Patents or Printed Publications in Other Cases not Involving the
 Patent While the Office would consider decisions involving substantially
 identical patents or printed publications in determining whether a “substantial new
 question of patentability” is raised, the weight to be given such decisions will
 depend upon the circumstances. 
 

 III. POLICY WHERE A FEDERAL COURT DECISION HAS BEEN ISSUED ON THE PATENT 
 

 A. Final Holding by Court that a Patent Has Not Been Proven Invalid When the initial question as to whether the prior art raises a
 substantial new question of patentability as to a patent claim is under
 consideration, the existence of a final court decision that a claim has not been
 proven invalid in view of the same or different prior art does not
 necessarily mean that no new question is present, because of the different standards
 of proof employed by the federal district courts and the Office. While the Office may
 accord deference to factual findings made by the district court, the determination of
 whether a substantial new question of patentability exists will be made independently
 of the court’s decision on validity, because it is not controlling on the Office. See
 In re Swanson et al., 540 F.3d 1368, 1378, 88 USPQ2d 1196, 1203
 (Fed. Cir. 2008), where the Federal Circuit approved of the Office’s interpretation
 in MPEP §
 2242 . See also In re Baxter International
 Inc., 678 F.3d 1357, 102 USPQ2d 1925 (Fed. Cir. 2012) (patent
 reexamination should take notice of a court decision but the Office need not come to
 the same conclusion as the court).
 

 B. Nonfinal Holding of Invalidity or Unenforceability by the Courts A nonfinal holding of claim
 invalidity or unenforceability will not be controlling on the
 question of whether a substantial new question of patentability is present. 
 

 C. Final Holding of Invalidity or Unenforceability by the Courts A final holding of claim
 invalidity or unenforceability, after all appeals, is
 controlling on the Office. In such cases, a substantial new question of patentability
 would not be present as to the claims finally held invalid or
 unenforceable because such claims no longer exist in the patent. 
 

 As to subsections A, B, and C above, see Ethicon v.
 Quigg, 849 F.2d 1422, 7 USPQ2d 1152 (Fed. Cir. 1988). 
 

 Any situations requiring clarification should be brought to the
 attention of the Office of Patent Legal Administration.
 

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 2201-Introduction 

 2202-Citation of Prior Art and Written Statements 

 2203-Persons Who May Cite Prior Art or Written Statements 

 2204-Time for Filing Prior Art or Section 301 Written Statements 

 2205-Content of Prior Art or Section 301 Written Statements 

 2206-Submission and Handling of Prior Art or Section 301 Written Statements 

 2207-Entry of Court Decision in Patent File 

 2208-Service of Prior Art or Section 301 Written Statements on Patent Owner 

 2209-Ex Parte Reexamination 

 2210-Request for Ex Parte Reexamination under 35 U.S.C. 302 

 2211-Time for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2212-Persons Who May File a Request for Ex Parte Reexamination under 35 U.S.C. 302 
 2212.01-Inquiries from Persons Other Than the Patent Owner 

 
 

 2213-Representative of Requester 

 2214-Content of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2215-Fee for Requesting Ex Parte Reexamination under 35 U.S.C. 302 

 2216-Substantial New Question of Patentability 

 2217-Statement Applying Prior Art in a Request Filed under 35 U.S.C. 302 

 2218-Copies of Prior Art 

 2219-Copy of Printed Patent 

 2220-Certificate of Service 

 2221-Amendments Included in Request Filed under 35 U.S.C. 302 by Patent Owner 

 2222-Address of Patent Owner 

 2223-Withdrawal of Attorney or Agent 

 2224-Correspondence 

 2225-Untimely Paper Filed Prior to Order under 35 U.S.C. 304 

 2226-Initial Processing of Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2227-Incomplete Request for Ex Parte Reexamination Filed under 35 U.S.C. 302 

 2228-[Reserved] 

 2229-Notice of Request under 35 U.S.C. 302 for Ex Parte Reexamination in Official Gazette 

 2230-Constructive Notice to Patent Owner 

 2231-Processing of Request Corrections 

 2232-Public Access to Reexaminations Filed under 35 U.S.C. 302 
 2232.01-Determining if a Reexamination Request Was Filed under 35 U.S.C. 302 for a Patent 

 
 

 2233-Processing in Central Reexamination Unit and Technology Center 

 2234-Entry of Amendments 

 2235-Record Systems 

 2236-Assignment of Reexamination 

 2237-Transfer Procedure 

 2238-Time Reporting 

 2239-Reexamination Ordered at the Director’s Initiative 

 2240-Decision on Request Filed under 35 U.S.C. 302 

 2241-Time for Deciding Request Filed under 35 U.S.C. 302 

 2242-Criteria for Deciding Request Filed under 35 U.S.C. 302 

 2243-Claims Considered in Deciding Request Filed under 35 U.S.C. 302 

 2244-Prior Art on Which the Determination Is Based in Requests Filed under 35 U.S.C. 302 

 2245-Processing of Decision 

 2246-Decision Ordering Reexamination under 35 U.S.C. 304 

 2247-Decision under 35 U.S.C. 303 on Request for Reexamination filed Under 35 U.S.C. 302, Request Denied 
 2247.01-Examples of Decisions on Request for Reexamination 

 
 

 2248-Petition From Denial of Request Filed Under 35 U.S.C. 302 

 2249-Patent Owner’s Statement in Reexaminations Filed Under 35 U.S.C. 302 

 2250-Amendment by Patent Owner 
 2250.01-Correction of Patent Drawings 

 2250.02-Correction of Inventorship 

 2250.03-Fees for Adding Claims and for Filing a Petition 

 
 

 2251-Reply by Third Party Requester 

 2252-Consideration of Statement and Reply 

 2253-Consideration by Examiner 

 2254-Conduct of Ex Parte Reexamination Proceedings 

 2255-Who Reexamines 

 2256-Prior Art Patents and Printed Publications Reviewed by Examiner in Reexamination 

 2257-Listing of Prior Art 

 2258-Scope of Ex Parte Reexamination 
 2258.01-Use of Previously Cited/Considered Art in Rejections 

 2258.02-Claiming Foreign Priority and Domestic Benefit in Reexamination 

 
 

 2259-Res Judicata and Collateral Estoppel in Reexamination Proceedings 

 2260-Office Actions 
 2260.01-Dependent Claims 

 
 

 2261-Special Status for Action 

 2262-Form and Content of Office Action 

 2263-Time for Response 

 2264-Mailing of Office Action 

 2265-Extension of Time 

 2266-Responses 
 2266.01-Submission Not Fully Responsive to Non-Final Office Action 

 2266.02-Examiner Issues Notice of Defective Paper in Ex Parte Reexamination 

 2266.03-Service of Papers 

 
 

 2267-Handling of Inappropriate or Untimely Filed Papers 

 2268-Petition for Entry of Late Papers for Revival of Reexamination Proceeding 

 2269-Reconsideration 

 2270-Clerical Handling 

 2271-Final Action 
 2271.01-Panel Review 

 
 

 2272-After Final Practice 

 2273-Appeal in Ex Parte Reexamination 

 2274-Appeal Brief 

 2275-Examiner’s Answer 

 2276-Oral Hearing 

 2277-Board Decision 

 2278-Action Following Decision 

 2279-Appeal to Courts 

 2280-Information Material to Patentability in Reexamination Proceeding Filed under 35 U.S.C. 302 

 2281-Interviews in Ex Parte Reexamination Proceedings 

 2282-Notification of Existence of Prior or Concurrent Proceedings and Decisions Thereon 

 2283-Multiple Copending Ex Parte Reexamination Proceedings 

 2284-Copending Ex Parte Reexamination and Interference Proceedings 

 2285-Copending Ex Parte Reexamination and Reissue Proceedings 

 2286-Ex Parte Reexamination and Litigation Proceedings 
 2286.01-Reexamination and Inter Partes Review Proceedings, Post-Grant Review, and Covered Business Method Patent Review 

 
 

 2287-Conclusion of Ex Parte Reexamination Proceeding 
 2287.01-Examiner Consideration of Submissions After a NIRC 

 
 

 2288-Issuance of Ex Parte Reexamination Certificate 

 2289-Reexamination Review 

 2290-Format of Ex Parte Reexamination Certificate 

 2291-Notice of Ex Parte Reexamination Certificate Issuance in Official Gazette 

 2292-Distribution of Certificate 

 2293-Intervening Rights 

 2294-Concluded Reexamination Proceedings 

 2295-Reexamination of a Reexamination 

 2296-USPTO Forms To Be Used In Ex Parte Reexamination 

 

 

 
 

 
 
 

 
 

 

 
 
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 03/09/2026 20:49:34