MPEP § 2816 — MPEP § 2816
Current through: 2022-07-01

2816-Determination on the Request 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Patent Laws, Regulations, Policies & Procedures 

 
 Manual of Patent Examining Procedure 

 Chapter 2800 

 Section 2816 
 

 
 
 
 
 
 2816 Determination on the Request [R-07.2022]

 
 37 CFR 1.620 Conduct of supplemental examination proceeding. 

 
 (a) Within three months after the filing date of a
 request for supplemental examination, the Office will determine whether a
 substantial new question of patentability affecting any claim of the patent is
 raised by any of the items of information presented in the request. The
 determination will generally be limited to a review of the item(s) of information
 identified in the request as applied to the identified claim(s) of the patent. The
 determination will be based on the claims in effect at the time of the
 determination and will become a part of the official record of the patent. 
 

 
 *****

 
 I. GENERAL GUIDANCE 35 U.S.C.
 257(a) and 37 CFR 1.620(b) require that, within
 three months following the filing date of a request for supplemental examination, the
 Office will determine whether a SNQ affecting any claim of the patent is raised by any
 of the items of information properly presented in the request. 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. See
 MPEP §§
 2816.02 and 2242 . 
 

 The determination of whether such an item of information
 raises a SNQ will generally be limited to a review of the item(s) of information
 identified in the request with respect to the identified claim(s) of the patent. For
 example, a determination on a request that includes three items of information, where
 each item is requested to be considered with regard to claim 1, will generally be
 limited to whether any of the three items of information raise a SNQ with respect to
 claim 1. If the patent owner wishes to request consideration of an item of information
 with respect to multiple claims of the patent, the request for supplemental examination
 must include an identification of each claim in view of which the item of information is
 to be considered, and the required detailed explanation with respect to each claim. For
 example, if the patent owner fails to request that the Office consider certain claims in
 view of an item of information, then the patent owner is not entitled to a determination
 for that item of information with respect to those claims. The determination will be
 based on the claims in effect at the time of the determination. See
 MPEP §
 2816.01 . The supplemental examination certificate, which
 contains the results of the determination of whether a SNQ was raised by one or more of
 the items of information submitted as part of the request, will become a part of the
 official record of the patent. 
 

 II. TREATMENT OF REQUEST WHEN LITIGATION IS COPENDING The patent owner may wish to consider the provisions of
 35 U.S.C.
 257(c)(1) and 35 U.S.C. 257(c)(2) on the
 effectiveness of any supplemental examination on already pending litigation when
 determining whether and when to file a request for supplemental examination. The Office
 takes no position on this issue.
 

 The patent owner must promptly notify the Office of any federal court
 decision involving the patent. 

 A. Litigation Search Before making a determination on the request for
 supplemental examination, a litigation search from the Technical Support Staff (TSS)
 of the Central Reexamination Unit (CRU) or the Scientific and Technical Information
 Center (STIC) may be done to check to see if the patent has been, or is, involved in
 litigation. A copy of the litigation search is scanned into the IFW file history. In
 the rare instance where the record of the supplemental examination proceeding or the
 litigation search indicates that additional information is desirable, guidance for
 making an additional litigation search may be obtained from the library of the Office
 of the Solicitor.
 

 If litigation has concluded or is taking place in the
 patent on which a request for supplemental examination has been filed, or if the
 examiner discovers, at any time during the supplemental examination proceeding, that
 there is litigation or that there has been a federal court decision on the patent,
 the request must be promptly brought to the attention of the Central Reexamination
 Unit (CRU) Supervisory Patent Reexamination Specialist (SPRS) or Technology Center
 (TC) Quality Assurance Specialist (QAS), who should review the decision on the
 request and any examiner’s action to ensure that it conforms to current Office policy
 and guidelines set forth below.
 

 B. Supplemental Examination With Concurrent Litigation Prior to Federal
 Court Decision In view of the statutory mandate to make the
 determination on the request within three months, the determination on the request
 based on the record before the examiner will be made without awaiting a decision by
 the federal court. It is not realistic to attempt to determine what issues will be
 treated, or what issues will be finally decided, by the federal court prior to the
 court decision. Accordingly, the determination on the request will be made without
 considering the issues allegedly before the court. If an ex parte 
 reexamination is ordered under 35 U.S.C. 257 , the reexamination
 will continue until the Office becomes aware that a court decision has issued. At
 such time, the reexamination proceeding ordered under 35 U.S.C.
 257 will be reviewed in accordance with the guidelines set
 forth in MPEP §
 2286 .
 

 C. Federal Court Decision Issues After Request Filed But Before Supplemental
 Examination Certificate Issues A non-final federal court decision
 concerning a patent under supplemental examination will have no binding effect on the
 Office’s determination whether a substantial new question of patentability has been
 raised in a supplemental examination proceeding. A non-final holding of claim
 invalidity or unenforceability (or, for that matter, a non-final holding of claim
 validity or enforceability) will not be controlling on the question of whether a
 substantial new question of patentability is present. A final 
 federal court decision, i.e., after all appeals, which upholds the
 validity of one or more of the patent claims also has no
 binding effect on the supplemental examination proceeding. See, e.g.,
 Ethicon v. Quigg, 849 F.2d 1422, 7 USPQ2d 1152 (Fed. Cir.
 1988), in which the court states the Office is not bound by a court’s holding of
 patent validity. While the Office may accord deference to factual findings made by
 the court, the determination of whether a substantial new question of patentability
 exists will be made independently of the court’s decision on validity as it is not
 controlling on the Office. See, e.g., 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
 MPEP §
 2286 for further guidance.
 

 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 held invalid or unenforceable.
 This policy tracks the Office’s policy for ex parte reexamination.
 See, e.g., MPEP §
 2286 , citing Ethicon v. Quigg. The
 Office will not intentionally conduct supplemental examination of patent claims which
 have been finally held to be invalid or unenforceable by a federal court. 
 

 If it is brought to the Office’s attention that a
 federal court has issued a final holding of invalidity or unenforceability, any
 claims which are finally held invalid or unenforceable, and for which supplemental
 examination has been requested, will not be examined. If only some of the claims
 requested to be examined have been finally held invalid or unenforceable, the
 examiner will indicate, in the Reasons for Substantial New Question of Patentability
 Determination which accompanies the supplemental examination certificate (see
 MPEP
 § 2816.03 , subsection II), which requested claims were not
 under supplemental examination due to the final holding of invalidity or
 unenforceability. If all of the claims requested to be examined have been finally
 held invalid or unenforceable, the Office will not conduct the supplemental
 examination. If a filing date has been granted, it will be vacated by the Office. If
 it is brought to the Office’s attention that, prior to the issuance of the
 supplemental examination certificate, a federal court has rendered a final decision,
 i.e., after all appeals, holding that all of the patent claims under supplemental
 examination are invalid or unenforceable, and if a supplemental examination
 certificate has inadvertently issued, the supplemental examination certificate will
 be vacated. 
 

 If a final federal court holding of invalidity or
 unenforceability is rendered after the date of electronic issuance of the
 supplemental examination certificate in the Office’s electronic Image File Wrapper
 system (IFW) and in Patent Center (see MPEP §
 2817.01 ), the supplemental examination certificate will not
 be vacated. If reexamination has been ordered as a result of the supplemental
 examination proceeding, and if a final holding of invalidity or unenforceability is
 brought to the Office’s attention, claims which are held invalid or unenforceable
 will be withdrawn from consideration in the reexamination. If all of the claims being
 examined in the reexamination proceeding are finally held invalid or unenforceable,
 the reexamination will be terminated by the CRU or TC Director as no longer
 containing a substantial new question of patentability. See MPEP § 2286 ,
 subsection IV for further guidance. 
 

 
 2816.01 Claims Considered in Making the
 Determination [R-11.2013]
 

 The claims of the patent in effect at the time of the
 determination will be the basis for deciding whether “a substantial new question of
 patentability” (SNQ) is present. See 37 CFR 1.620(a) . In a supplemental
 examination proceeding, the determination will be limited to a review of the claim(s)
 for which supplemental examination is requested. The Office will generally not initiate
 supplemental examination of any patent claims for which supplemental examination was not
 requested by the patent owner. 
 

 37 CFR
 1.610(b)(5) requires that the request must include
 
 "[a] separate, detailed explanation of the relevance and manner of
 applying each item of information to each claim of the patent for which supplemental
 examination is requested."
 
 
 If the patent owner fails to explain
 how any of the items of information may be applied to a patent claim, then the patent
 owner is not entitled to supplemental examination of that claim. If the patent owner
 does not provide an explanation of how an item of information may be applied to every
 claim requested to be examined in view of that item, the patent owner is not entitled to
 a determination on claims for which the required explanation was not provided. For
 example, if the patent owner requests supplemental examination of claims 1-10 in view of
 the Fisher article, but only provides a separate, detailed explanation of the manner of
 applying the Fisher article to claims 1-5, then the patent owner is not entitled to a
 determination on claims 6-10, for which the required explanation was not provided. In
 such instances, a notice of noncompliant supplemental examination request should be
 mailed by the Office. See MPEP § 2812.02 . 
 

 If the examiner determines that a SNQ affecting a patent
 claim has been raised by at least one of the items of information submitted as part of
 the request, reexamination will be ordered under 35 U.S.C.
 257 . Once reexamination under 35 U.S.C.
 257 is ordered, the Office may, in its sole discretion, reexamine
 claims other than the claims for which supplemental examination has been requested. See
 35 U.S.C.
 303(a) . 
 

 As a general rule, the Office will analyze a claim for
 which supplemental examination is requested only in light of the item(s) of information
 identified for that claim. For example, if the patent owner requests supplemental
 examination of claim 1 in light of three items of information, and requests supplemental
 examination of claim 5 in light of two other items of information, the Office will
 analyze, in general, only claim 1 in light of the three items of information identified
 for claim 1, and only claim 5 in light of the two items of information identified for
 claim 5. The examiner, however, has the discretion to determine whether any of the items
 of information properly submitted with the request raises a SNQ affecting any of the
 claims for which supplemental examination is requested. Based on the facts given in the
 above example, the examiner has the option to determine whether any of the five items of
 information provided with the request raises a SNQ affecting either claim 1 or claim 5.
 In other words, the examiner has the option of analyzing the items of
 information provided with the request with respect to any of the claims for which
 supplemental examination is requested, in a manner other than that provided by the
 patent owner in the request. The patent owner, however, is not 
 entitled to a determination on a claim for which the required explanation
 under 37 CFR
 1.610(b)(5) has not been provided. 
 

 Amendments and/or new claims presented in any copending
 post-patent Office proceeding for the patent to be examined will not be considered nor
 commented upon when deciding a request for supplemental examination. However, if after
 reexamination of the patent under 35 U.S.C. 257 has been ordered, a
 certificate or reissued patent has been issued which amends the claims for which
 reexamination has been ordered under 35 U.S.C. 257 , reexamination should
 be on the basis of the claims as amended by that certificate or reissued patent, because
 the certificate becomes part of the patent as of its issue date or the original patent
 is surrendered and replaced by the reissued patent as of the issue date of the reissued
 patent.
 

 

 
 2816.02 Criteria for Making the Determination [R-01.2024]

 The criteria for making the determination on the request
 for supplemental examination is whether any of the items of information submitted with
 or as part of the request raise a substantial new question of patentability affecting at
 least one claim of the patent. See 35 U.S.C. 257(a) .
 

 I. SUBSTANTIAL NEW QUESTION OF PATENTABILITY (SNQ) The examiner will determine if a SNQ is raised by each
 item of information. The SNQ standard in supplemental examination proceedings is
 identical to the “substantial new question of patentability” standard in ex
 parte reexamination proceedings. The meaning and scope of the term “a
 substantial new question of patentability” is not defined in the statute, and must be
 developed on a case-by-case basis, with reference to earlier case law involving
 ex parte reexamination proceedings. 
 

 If an item of information raises a substantial new
 question of patentability (SNQ) for 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. Issues
 involving 35 U.S.C. 325(d) must be referred to the Director of the CRU.
 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 of the patent; (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 proceeding, which has been concluded and which involved the
 patent. 
 

 For example, the same question of
 patentability may already have been decided if the Office has previously considered,
 in an earlier concluded examination or review of the patent, the same question of
 patentability based on the same prior art. See In re Recreative
 Technologies, 83 F.3d 1394, 38 USPQ2d 1776 (Fed. Cir. 1996). Prior art
 which has been cited or considered by the Office is referred to, for the sake of
 expediency, as “old art,” as coined by the Federal Circuit in its decision in
 In re Hiniker, 150 F.3d 1362, 1365-66, 47 USPQ2d 1523, 1526
 (Fed. Cir. 1998). 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. See Public Law 107-273, 116 Stat. 1758, 1899-1906 (2002), which expanded the
 scope of what qualifies for a SNQ. 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.
 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 .
 

 The answer to the question of whether a substantial
 new question of patentability (SNQ) exists, and therefore whether reexamination may
 be ordered, is decided by the Central Reexamination Unit (CRU), under the authority
 delegated by the Director of the USPTO. 
 

 An item of information raises a substantial new
 question of patentability where there is a substantial likelihood that a reasonable
 examiner would consider the item of information important in deciding whether or not
 the claim is patentable. For example, if the supplemental examination request states
 and explains that there may be a potential issue under 35 U.S.C. 101 
 regarding claim 5, the examiner would review the supplemental examination record to
 decide whether there is a substantial likelihood that a reasonable examiner would
 find the item of information (e.g., the discussion in the request regarding claim 5
 and the potential issue under 35 U.S.C. 101 ) important in
 determining the patentability of claim 5. If the item of information 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, decided by the Office in an earlier concluded examination or review, or 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 that the items of information, which are newly
 provided prior art patents or printed publications, are merely cumulative to 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 (SNQ)
 to be present, it is only necessary that: (A) an item of information raises a SNQ
 regarding at least one claim, i.e., the teaching of the item of information 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,
 decided in a final holding of invalidity (after all appeals) by a federal court in a
 decision on the merits involving the claim, or raised to or by the Office in a
 pending reexamination or supplemental examination of the patent. 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 items of information. 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 SNQ exists. 
 

 II. POLICY IN SPECIFIC SITUATIONS An item of information limited to a
 correction of factual information, alone, may not raise a substantial new question of
 patentability (SNQ). For example, an item of information limited to the correction of
 a missing or erroneous foreign priority or domestic benefit claim, alone, generally
 will not raise an issue of patentability. In order for the correction of a foreign
 priority or domestic benefit claim to raise a SNQ, the request for supplemental
 examination should also include one or more additional item(s) of information, such
 as one or more intervening reference(s), that would cause the patentability of the
 claims under, e.g., 35 U.S.C. 102 or
 103 , to depend upon the foreign priority or
 domestic benefit claim. In such an instance, the item of information may raise a SNQ,
 depending upon whether the foreign priority or domestic benefit
 claim is or is not corrected. Similarly, information limited to the correction of
 other factual information, such as the common ownership of the claims, alone, may not
 raise a SNQ, in the absence of one or more additional item(s) of information that
 would cause the patentability of the claims to depend upon the
 issue of common ownership. For this reason, the Office recommends that any request
 for supplemental examination that includes an item of information limited to the
 correction of factual information, should also include one or more additional item(s)
 of information that potentially provide evidence that the patentability of the claims
 depends upon the factual information to be corrected. See
 MPEP
 § 2809.01 . 
 

 Example of Determination on Information Directed to a Missing Domestic
 Benefit Claim 

 The patent owner informs the Office, in a request for
 supplemental examination, that the effective filing date of the claimed invention in
 the patent to be examined should be corrected to reflect the earlier filing date of a
 parent patent. The request includes, as an item of information, a copy of the parent
 patent and a discussion within the body of the request explaining how each claim
 limitation of the patent to be examined is supported by the disclosure of the parent
 patent. The request also includes, as a second item of information, a copy of an
 intervening patent or printed publication that caused the patent owner to reconsider
 the effective filing date of the claims. In such a case, the examiner will first
 determine whether the second item of information, i.e., the intervening reference,
 would raise a substantial new question of patentability (SNQ) if the effective filing
 date of the claimed invention in the patent to be examined remains unchanged and is
 not corrected. 
 

 If the examiner determines that a SNQ would be raised
 by the intervening reference if the effective filing date of the claimed invention in
 the patent to be examined remains unchanged and is not corrected, the examiner may,
 at the examiner’s option, then make a preliminary determination of
 whether the patent owner is entitled to the benefit of the earlier filing date by,
 for example, analyzing whether the claim limitations of the patent to be examined are
 supported by the disclosure of the parent patent. A final 
 determination, however, that the patent owner is entitled to the benefit of the
 earlier filing date will, in general, only be made during any resulting reexamination
 proceeding, when, for example, any appropriate amendment to the specification, and
 the required petition for an unintentionally delayed benefit claim under
 37 CFR
 1.78 , may be filed. See MPEP §§
 2813 – 2813.01. For a discussion of the
 explanation under 37 CFR 1.610(b)(5) that must be
 provided in such a case, see MPEP § 2811.01 , subsection III.
 Where the examiner determines that a substantial new question of patentability is
 raised, reexamination will be ordered, and the domestic benefit claim may be added
 during the resulting reexamination proceeding. See MPEP §
 2809.01 and MPEP § 2816.03 , subsection
 II.
 

 If the examiner determines that the intervening
 reference does not raise a substantial new question of
 patentability even if the effective filing date of the claimed invention in the
 patent to be examined remains unchanged and is not corrected, then the item of
 information limited to the correction of the missing domestic benefit claim, i.e.,
 the parent patent and the discussion within the body of the request showing how each
 claim limitation is supported by the disclosure of the parent patent, will not be
 further considered on the merits. The examiner will issue a supplemental examination
 certificate indicating that no substantial new question of patentability is raised by
 the request, and the domestic benefit claim will not be added to the patent. See
 MPEP
 § 2816.03 , subsection II.
 

 Example of a Determination on Information Directed to the Deletion of an
 Earlier-Obtained Domestic Benefit Claim 

 The patent owner, in a request for supplemental
 examination, requests the deletion of an earlier-obtained domestic benefit claim. The
 request includes, as an item of information, an intervening reference which caused
 the patent owner to reconsider the effective filing date of the claims, and which
 would pre-date the effective filing date of the claimed invention in the patent to be
 examined, if the domestic benefit claim is deleted. The request also includes a
 detailed explanation of how the intervening reference may be applied to the patent
 claims if the domestic benefit claim is deleted. See MPEP §
 2811.01 , subsection III. In this case, the examiner would
 determine whether the intervening reference would raise a substantial new question of
 patentability (SNQ) affecting the identified claims of the patent if the domestic
 benefit claim is deleted and the effective filing date of the claimed invention in
 the patent to be examined is corrected to an appropriate later filing date. If the examiner determines that the
 intervening reference does not raise a SNQ, then the examiner will issue a
 supplemental examination certificate indicating that no SNQ is raised by the request.
 If the examiner determines that the intervening reference raises a SNQ, then the
 examiner will issue a supplemental examination certificate indicating that a SNQ
 affecting at least one claim of the patent is raised in the request. Reexamination
 will be ordered, and the domestic benefit claim may be corrected during the resulting
 reexamination proceeding. Patent owners are reminded, however, that the deletion of
 the domestic benefit claim in this example will not operate to extend the term of the
 patent. See MPEP § 2809.01 and
 MPEP
 § 2816.03 , subsection II.
 

 Determination Where the Request Only Includes Information Limited to the
 Correction of Factual Information 

 If the only information provided with the request is
 solely directed to the correction of factual information, such as the correction of a
 missing or erroneous foreign priority or domestic benefit claim, or the correction of
 the common ownership of the claims, which does not, itself, raise a substantial new
 question of patentability (SNQ), then (1) the supplemental examination certificate
 will state that no SNQ is raised in the request for supplemental examination; and (2)
 the reasons for SNQ determination will indicate that the information
 regarding the correction of factual information did not raise a SNQ because the
 patent owner did not include with the request any additional items of information
 that caused the patentability of the claim(s) to depend upon the corrected factual
 information . 
 

 For example, if the request only includes one item of
 information, and that item of information is limited to the correction of an
 erroneous domestic benefit claim, such as, e.g., a copy of a parent patent and a
 discussion within the body of the request showing how each claim limitation is
 supported by the disclosure of the parent patent, then the reasons for SNQ
 determination should indicate that the information regarding the domestic benefit
 claim did not raise a SNQ because the patent owner did not include with the request
 any intervening art or other information that caused the patentability of the
 claim(s) to depend upon the domestic benefit claim. See MPEP §
 2809.01 .
 

 Determination Where the Request Includes Information Limited to Correction
 of Factual Information and Additional Information Unrelated to the Factual
 Information to be Corrected 

 Alternatively, the request may include one or more
 additional items of information which are unrelated to the factual information to be
 corrected, but which raise a substantial new question of patentability (SNQ). For
 example, the patent owner may include, in addition to information limited to the
 correction of a domestic benefit claim, an item of information such as a reference
 patent that would qualify as prior art under 35 U.S.C.
 102 even if the domestic benefit claim is corrected. If the
 examiner determines that a SNQ is raised in the request, the examiner may, at the
 examiner’s option, make a preliminary determination of whether the patent owner is
 entitled to the benefit of the corrected benefit claim, as discussed previously.
 Reexamination will be ordered, and the domestic benefit claim may be corrected during
 the resulting reexamination proceeding. See MPEP §
 2809.01 and MPEP §
 2816.03 , subsection II. If the examiner determines that no
 SNQ is raised by the additional item(s) of information, the information limited to a
 correction of the domestic benefit claim will not be further considered on the
 merits. A supplemental examination certificate, which indicates that no SNQ is raised
 by the request, will be issued, and the benefit claim will not be corrected.
 

 See also MPEP § 2242 , subsections II and III,
 for more information on how a substantial new question of patentability may be
 determined in specific situations.
 

 

 
 2816.03 Content of the Determination [R-01.2024]

 
 35 U.S.C. 257 
 Supplemental examinations to consider, reconsider, or correct
 information. 

 
 (a) REQUEST FOR SUPPLEMENTAL EXAMINATION.—A patent
 owner may request supplemental examination of a patent in the Office to
 consider, reconsider, or correct information believed to be relevant to the
 patent, in accordance with such requirements as the Director may establish.
 Within 3 months after the date a request for supplemental examination meeting
 the requirements of this section is received, the Director shall conduct the
 supplemental examination and shall conclude such examination by issuing a
 certificate indicating whether the information presented in the request raises
 a substantial new question of patentability.
 

 
 *****

 

 
 37 CFR 1.620 Conduct of supplemental examination proceeding. 

 
 (a) Within three months after the filing date of a
 request for supplemental examination, the Office will determine whether a
 substantial new question of patentability affecting any claim of the patent is
 raised by any of the items of information presented in the request. The
 determination will generally be limited to a review of the item(s) of
 information identified in the request as applied to the identified claim(s) of
 the patent. The determination will be based on the claims in effect at the time
 of the determination and will become a part of the official record of the
 patent. 
 

 
 *****

 

 Once a determination is made on the request as to whether
 the items of information raise a substantial new question of patentability (SNQ), the
 examiner will prepare: (1) the Supplemental Examination Certificate; and (2) the Reasons
 for Substantial New Question of Patentability Determination (the "reasons
 document").
 

 I. THE SUPPLEMENTAL EXAMINATION CERTIFICATE The supplemental examination certificate is prepared
 by utilizing a form captioned “Supplemental Examination Certificate.” The form lists
 all of the items of information properly submitted as part of the supplemental
 examination request and states whether a SNQ affecting at least one claim of the
 patent is raised in the request.
 

 Examiners should not initial, sign and date the listing
 of the items of information ( 37 CFR 1.610(b)(2) ) submitted
 with the request. This practice is different from the current practice regarding
 prior art citations in applications or proceedings involving patents. There is no
 need to initial, sign, and date the listing submitted under 37 CFR
 1.610(b)(2) because the supplemental examination certificate
 includes a citation to each item of information properly submitted as part of the
 request. 
 

 A copy of a supplemental examination certificate
 indicating that a SNQ affecting at least one claim of the patent is raised in the
 request, and a copy of a supplemental examination certificate indicating that no SNQ
 is raised in the request, appear below.
 

 

 
 II. THE REASONS FOR SUBSTANTIAL NEW QUESTION OF PATENTABILITY DETERMINATION
 (REASONS DOCUMENT) The Reasons for Substantial New Question of
 Patentability (SNQ) Determination (or “reasons document”) will typically accompany
 the supplemental examination certificate. This document will explain, for each item
 of information, why each item does or does not raise a SNQ. Form paragraph
 28.01 
 should be used as the heading for the reasons document.
 

 A. Where At Least One Substantial New Question of Patentability is
 Found If the request is determined to raise at least one
 SNQ, the supplemental examination certificate will indicate that a SNQ affecting
 at least one claim of the patent has been raised, and will refer to the reasons
 document. For each item of information, the reasons document should include: 
 

 
 (1) A statement that the item of information, as
 presented in the request, raises a SNQ, and an identification of the claims
 for which a SNQ is raised. 
 

 (2) Where appropriate, a statement that the item
 of information, as presented in the request, does not raise a SNQ, and an
 identification of the claims for which a SNQ is not raised.
 

 (3) A brief statement of the basis for the
 determination that a SNQ affecting the identified claims was raised by the
 item, or was not raised by the item.
 

 
 Where an item of information is determined to raise
 a SNQ, but the SNQ is determined to affect less than all of the claims which were
 requested to be examined in view of the item, the reasons document may also
 include, in addition to (1) above, an identification of the claims for which a SNQ
 was not raised by the item, and a brief statement of the basis for that
 determination.
 

 For each item of information, the examiner need
 only identify one SNQ (e.g., a teaching that would be important to a reasonable
 examiner when determining patentability) for each identified claim. The examiner
 may rely upon a determination that a SNQ is raised for an independent claim as the
 basis that a SNQ is raised for each dependent claim that incorporates the subject
 matter of the independent claim, if the dependent claims were also requested to be
 examined by the patent owner. For example, if the examiner finds that item of
 information A raises a SNQ for independent claim 1, the examiner may rely upon the
 explanation of how item A raises a SNQ for claim 1 as the explanation of how item
 A raises a SNQ for dependent claims 2-10, which were also requested to be examined
 by the patent owner. Form paragraph 28.03 should be used to explain why an item of
 information raises a SNQ.
 

 For each item of information, if the examiner determines that a substantial
 new question of patentability is raised by the item, the
 reasons document should point out :
 

 
 (A) That the item of information raises a SNQ
 affecting specific claims of the patent (where the specific claims are
 listed);
 

 (B) The recitation of the specific claim
 limitation(s) affected by the teaching(s) of the item of information;
 

 (C) What the teaching(s) are, and where in the
 item of information the teaching(s) are to be found; 
 

 (D) Why a reasonable examiner would consider the
 teaching(s) to be important in determining the patentability of the specific
 claim(s) (where the specific claims are listed) for which supplemental
 examination is being requested; and
 

 (E) Where appropriate, whether the item of
 information is prior art (e.g., due to its issue date or publication date)
 to specific patent claims (where the specific claims are listed) and, when
 applicable, the reasons why the item of information is deemed to be
 available as prior art against the patent claims.
 

 
 For each item of information, if the examiner determines that a substantial
 new question of patentability is not raised by the item,
 the reasons document should point out :
 

 
 (A) That the item of information does not raise a
 SNQ affecting specific claims of the patent (where the specific claims are
 listed); 
 

 (B) The recitation of the specific claim
 limitation(s), if any, which were discussed in the request with respect to
 the teaching(s) of the item of information;
 

 (C) What the teaching(s) are, if any, and where in
 the item of information the teaching(s) are to be found; 
 

 (D) Why a reasonable examiner would not consider
 the teaching(s) to be important in determining the patentability of the
 specific claim(s) (where the specific claims are listed) for which
 supplemental examination is being requested (e.g., why the teaching(s) are
 cumulative to the teachings considered in the earlier concluded examination
 or review of the patent, or are not important even though the teaching(s)
 are not cumulative and are available against the claim); 
 

 (E) Where appropriate, whether the item of
 information is available as prior art (e.g., due to its issue date or
 publication date) against specific patent claims (where specific claims are
 listed) and, when applicable, the reasons why the item of information is or
 is not deemed to be available as prior art against the patent claims; and
 
 

 (F) If the item of information is not deemed to
 be available as prior art against specific patent claims, a further
 statement, when applicable, that the item does not contain information that
 raises any other issues of patentability with respect to the specific claims
 (where the specific claims are listed). For example, a request for the
 supplemental examination of claims 1-3 includes, as an item of information,
 a copy of a foreign search report which is determined not to raise any
 issues of patentability under 35 U.S.C. 101 ,
 102 , 103 , or 35 U.S.C. 112 affecting
 claims 1-3. In the reasons document, the examiner should explain why the
 foreign search report does not qualify as prior art (under, e.g.,
 35 U.S.C. 102 or
 103 ) against any of
 claims 1-3, and should also state that the foreign search report does not
 contain information that raises any other issues of patentability with
 respect to claims 1-3 of the patent. 
 

 
 Where applicable, the examiner should also explain
 why an item of information that was cited in the record of the patent is barred by
 the guidelines set forth in MPEP § 2242 , subsection II.A.
 

 Where it is not clear from the patent file or supplemental examination
 record, the reasons document may optionally include, for
 each item of information :
 

 
 (i) An explanation that the teaching was not
 previously considered or addressed in any prior examination or proceeding
 involving the patent or a final holding of invalidity of the patent by the
 federal courts; or
 

 (ii) An explanation that the teaching, if
 considered in a previous examination or proceeding of the patent or of the
 application that became the patent, is presented in a new light, or in a
 different way, by the arguments presented in the request. 
 

 
 If the examiner determines that an item of
 information does not raise a SNQ affecting every claim to which the item of
 information was applied in the request, the examiner should state the claim(s) for
 which the SNQ was not raised and a brief statement of the reasons why the item did
 not raise a SNQ affecting the identified claim(s). If the patent owner applied the
 item of information to an independent claim, but did not apply the item to its
 dependent claims, the examiner may rely upon a determination that a SNQ is not
 raised for the independent claim as the basis for the determination that a SNQ is
 not raised for each dependent claim, for which supplemental examination was also
 requested, and which incorporates the subject matter of the independent claim. For
 example, if the patent owner provided a detailed explanation of the manner of
 applying item of information A to independent claim 11 as required by
 37
 CFR 1.610(b)(5) , and relied on that explanation as the only
 required explanation for dependent claims 12-21 (for which supplemental
 examination was also requested), and if the examiner finds that item of
 information A does not raise a SNQ for independent claim 11, then the examiner may
 rely upon the explanation of how item A does not raise a SNQ for claim 11 as the
 explanation for its dependent claims 12-21. Form paragraph
 28.02 
 should be used to explain why an item of information does not raise a SNQ.
 

 The examiner will not decide, and no statement
 should be made, as to whether the claims are rejected over the items of
 information. It is unnecessary for the examiner to decide questions of
 patentability of the claims in a supplemental examination proceeding. The examiner
 only decides whether there is a SNQ.
 

 B. Where No Substantial New Question of Patentability is Found If the examiner determines that none of the items
 of information properly submitted as part of the request raise a SNQ, the
 supplemental examination certificate will state that no SNQ is raised in the
 request for supplemental examination, and will refer to the Reasons for
 Substantial New Question of Patentability Determination (i.e., "the reasons
 document"). The reasons document should explain why each item of information did
 not raise a SNQ for every claim to which that item of information was applied in
 the supplemental examination request. See subsection II.A., above. Form paragraph
 28.02 
 should be used to explain why each item of information does not raise a SNQ.
 

 C. Where the Request Includes Factual Information to be
 Corrected Where the request includes an item of information
 limited to the correction of factual information, the request should also include
 one or more additional item(s) of information, such as one or more intervening
 reference(s), that potentially provide evidence that the patentability of the
 claims depends upon the factual information to be corrected.
 In such an instance, the item of information may raise a SNQ, depending
 upon whether the foreign priority or domestic benefit claim is or is
 not corrected.
 

 Example 1. The request includes a first item of information
 limited to the addition of a claim for the benefit of an earlier effective filing
 date, a second item of information which is an intervening reference, and a
 detailed explanation of how the intervening reference may be applied to the patent
 claims if the domestic benefit claim remains unchanged, and is not corrected. If
 the examiner determines that a SNQ is raised by the intervening reference, the
 examiner should include, in the reasons document, the reasons why the intervening
 reference raises a SNQ, in accordance with the general guidance set forth above in
 subsection II.A. If the examiner determines that no SNQ is raised by the
 intervening reference, the examiner should provide, in the reasons document, the
 reasons for the determination that the second item of information, i.e., the
 intervening reference, does not raise a SNQ in accordance with the general
 guidance set forth above in subsection II.B., even if the domestic benefit claim
 remains unchanged and is not corrected. The examiner should also provide a
 statement to the effect that the first item of information, which is limited to
 the correction of a domestic benefit claim, does not raise a SNQ
 because the patent owner did not include with the request any
 additional items of information that cause the patentability of the claim(s) to
 depend upon the domestic benefit claim, even if the domestic benefit claim
 remains unchanged and is not corrected . 
 

 Example 2. The request includes a first item of information
 limited to the deletion of a benefit claim, a second item of information which is
 a reference that pre-dates the effective filing date of the claimed invention in
 the patent if the benefit claim is deleted (i.e., an intervening reference), and a
 detailed explanation of how the intervening reference may be applied to the patent
 claims if the benefit claim is deleted. If the examiner determines that a SNQ is
 raised by the intervening reference if the benefit claim is deleted, the examiner
 should include, in the reasons document, the reasons why the intervening reference
 raises a SNQ if the domestic benefit claim is deleted, in accordance with the
 general guidance set forth above in subsection II.A. If the examiner determines
 that no SNQ is raised by the intervening reference, the examiner should provide,
 in the reasons document, the reasons for the determination that the second item of
 information, i.e., the intervening reference, does not raise a SNQ in accordance
 with the general guidance set forth above in subsection II.B., even if the
 domestic benefit claim was deleted. The examiner should also provide a statement
 to the effect that the first item of information, which is limited to the deletion
 of the domestic benefit claim, does not raise a SNQ because the patent
 owner did not include with the request any additional items of information that
 cause the patentability of the claim(s) to depend upon the domestic benefit
 claim, even if the domestic benefit claim were to be deleted .
 

 D. Panel Review After an examiner has made a preliminary
 determination, the examiner will formulate a draft Supplemental Examination
 Certificate and a draft Reasons for Substantial New Question of Patentability
 Determination (i.e., a draft "reasons document"). The examiner will then inform
 their CRU Supervisory Patent Reexamination Specialist (SPRS) of the preliminary
 determination. A panel review conference will be convened, and the conference
 members will review the preliminary determination. See MPEP § 2271.01 
 for the make-up of the panel. If the conference confirms the examiner’s
 preliminary determination, the Supplemental Examination Certificate shall be
 issued by its publication in the Office’s Image File Wrapper System, IFW, which
 will be viewable in Patent Center. The reasons document will be labeled "Reasons
 for SNQ Determination" in IFW, and it will generally be available for viewing at
 the same time as, or shortly after, the issuance of the certificate. The reasons
 document will be signed by the examiner, with the two other conferees initialing
 as “conferee” to indicate their presence in the conference. 
 

 If the conference does not confirm the examiner’s
 preliminary determination, the examiner will reevaluate and make appropriate
 changes to the draft Supplemental Examination Certificate and draft reasons
 document, in accordance with any agreement reached at the conference.
 

 E. Form Paragraphs for the Reasons for Substantial New Question of
 Patentability Determination The following are the form paragraphs that should
 be used in the Reasons for Substantial New Question of Patentability
 Determination:
 

 ¶ 28.01 Header for Statement of Reasons for Substantial New Question
 of Patentability Determination
 
REASONS FOR SUBSTANTIAL NEW QUESTION OF
 PATENTABILITY DETERMINATION
 

 ¶ 28.02 Reasons for Finding No Substantial New Question of
 Patentability
 

 [1] , as presented in the request, does not
 raise a substantial new question of patentability because [2] .
 

 Examiner Note:
 
 1. In bracket 1, insert the name or description, as appropriate, for
 the item of information. For example, a patent or patent application publication may be
 designated using the name of the patentee or first-named inventor, such as
 
 "the Jones patent,"
 
 
 
 "the Jones patent application publication,"
 
 
 or
 the number of the patent or patent application publication. A non-patent literature
 document may be designated by the name of the author, such as the
 
 "the Sherwood publication"
 
 
 and the date of the
 publication, if desired. A sales receipt or invoice should be designated using the date
 of the receipt, and any appropriate descriptive information, such as
 
 "the March 11, 2011, BigBoxStore sales
 receipt,"
 
 
 or 
 "the April 1, 2011 XYZ
 Corporation invoice."
 
 
 An affidavit or declaration should be
 designated using the name of the declarant and the date of the affidavit or declaration,
 such as 
 "the Schmidt declaration dated January 20,
 2012."
 
 
 A transcript of an audio or video recording should be
 designated using the title of the recording and the date of the recording, if
 applicable, such as 
 "the transcript of the September 16, 2012 XYZ
 Corporation Marketing Video."
 
 
 A discussion within the body of the
 request regarding a potential issue under 35 U.S.C. 101 may be designated, for
 example, as 
 "the discussion on pages 7-11 of the request regarding a
 potential issue under 35 U.S.C.
 101 ."
 
 
 
 

 2. In bracket 2, insert the reasons for the determination that the
 item of information does not raise a substantial new question of patentability.
 
 
 

 ¶ 28.03 Reasons for Finding A Substantial New Question of
 Patentability
 

 [1] , as presented in the request, raises a
 substantial new question of patentability affecting patent claim(s) [2] because
 [3] .
 

 Examiner Note:
 
 1. In bracket 1, insert the name or description, as appropriate, for
 the item of information. For example, a patent or patent application publication may be
 designated using the name of the patentee or first-named inventor, such as
 
 "the Jones patent,"
 
 
 
 "the Jones patent application publication,"
 
 
 or
 the number of the patent or patent application publication. A non-patent literature
 document may be designated by the name of the author, such as the
 
 "the Sherwood publication"
 
 
 and the date of the
 publication, if desired. A sales receipt or invoice should be designated using the date
 of the receipt, and any appropriate descriptive information, such as
 "
 the March 11, 2011, BigBoxStore sales receipt,"
 
 
 or
 
 "the April 1, 2011, XYZ Corporation invoice."
 
 
 
 An affidavit or declaration should be designated using the name of the declarant and the
 date of the affidavit or declaration, such as 
 "the Schmidt
 declaration dated January 20, 2012."
 
 
 A transcript of an audio or
 video recording should be designated using the title of the recording and the date of
 the recording, if applicable, such as 
 "the transcript of the
 September 16, 2012, XYZ Corporation Marketing Video."
 
 
 A
 discussion within the body of the request regarding a potential issue under
 35 U.S.C.
 101 may be designated, for example, as 
 "the
 discussion on pages 7-11 of the request regarding a potential issue under
 35 U.S.C.
 101 ."
 
 
 
 

 2. In bracket 2, insert the claims for which a substantial new
 question of patentability has been raised.
 

 3. In bracket 3, insert the reasons for the determination that the
 item of information raises a substantial new question of patentability (SNQ). If a SNQ
 is found for only a portion of the claims identified with respect to the item of
 information, then an additional statement may be included explaining why a SNQ was found
 with respect to some of the identified claims, and why a SNQ was not found with respect
 to the remainder of the identified claims. For example, if the patent owner requests
 supplemental examination of claims 1-10 in view of the Schmidt patent, and the examiner
 finds that a substantial new question of patentability affecting only patent claims 1-5
 is raised by that item of information, then the form paragraph may be completed by, for
 example, stating 
 "The Schmidt patent, as presented in the request,
 raises a substantial new question of patentability affecting patent claims 1-5
 because [provide reasons]. However, the Schmidt patent, as presented in the request,
 does not raise a substantial new question of patentability affecting patent claims
 6-10 because [provide reasons]."
 
 
 
 
 
 

 

 
 2816.04 Effect of the Determination [R-11.2013]

 If the examiner determines that a SNQ is raised by one or
 more items of information in the request, ex parte reexamination of
 the patent will be ordered under 35 U.S.C. 257 . See 37 CFR
 1.625(b) and (d) . See MPEP §
 2818.01 .
 

 If the supplemental examination certificate indicates
 that no SNQ is raised by any of the items of information in the request, ex
 parte reexamination will not be ordered, and the fee for reexamination
 ordered as a result of supplemental examination, as set forth in 37 CFR
 1.20(k)(2) , will be refunded in accordance with 37 CFR
 1.610(d) . See MPEP § 2818.02 .
 

 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 2801-Introduction 

 2802-Supplemental Examination 

 2803-Persons Who May File a Request for Supplemental Examination 
 2803.01-Inquiries from Persons Other Than the Patent Owner 

 2803.02-Public Access 

 
 

 2804-Representative of Patent Owner 
 2804.01-Withdrawal of Attorney or Agent 

 
 

 2805-Correspondence with Patent Owner; Patent Owner Address 

 2806-How to File Papers in a Supplemental Examination Proceeding and in Any Resulting Ex Parte Reexamination Proceeding 

 2807-Format of Papers Filed in a Supplemental Examination Proceeding 

 2808-Time for Requesting Supplemental Examination 

 2809-Items of Information 
 2809.01-Information Relating to the Correction of Factual Information 

 
 

 2810-Fees Due on Filing a Supplemental Examination Request 
 2810.01-Document Size Fees 

 
 

 2811-Content of Request for Supplemental Examination 
 2811.01 -Detailed Explanation of the Relevance and Manner of Applying Each Item of Information 

 2811.02 -Optional Content 

 
 

 2812-Initial Processing of a Request for Supplemental Examination 
 2812.01 -Filing Date of the Request 

 2812.02-Noncompliant Request for Supplemental Examination 

 2812.03 -Corrected Request 

 2812.04 -Termination Due to Defective/Improper Request or Corrected Request 

 
 

 2813-Handling of Papers, Other Than a Request, in a Supplemental Examination Proceeding 
 2813.01 -Amendments 

 
 

 2814-Interviews Are Prohibited 

 2815-Time for Deciding Request 

 2816-Determination on the Request 
 2816.01 -Claims Considered in Making the Determination 

 2816.02 -Criteria for Making the Determination 

 2816.03 -Content of the Determination 

 2816.04 -Effect of the Determination 

 
 

 2817-Conclusion of Supplemental Examination 
 2817.01 -Processing and Electronic Issuance of Supplemental Examination Certificate 

 
 

 2818-Procedure after Conclusion of Supplemental Examination 
 2818.01 -After Determination Finding a Substantial New Question of Patentability 

 2818.02 -After Determination Finding No Substantial New Question of Patentability 

 
 

 2819-Discovery of Possible Material Fraud 

 2820-Submission of Notification of Other Prior or Concurrent Post-Patent Office Proceedings 

 2821-Multiple Post-Patent Office Proceedings 

 2822-Assignment of the Supplemental Examination Proceeding 

 2823-Differences Between an Ex Parte Reexamination Proceeding Ordered Pursuant to 35 U.S.C. 257 and an Ex Parte Reexamination Proceeding
 Ordered Pursuant to 35 U.S.C. 302 

 

 

 
 

 
 
 

 
 

 

 
 
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 03/09/2026 20:49:41