In Re Swanson And The Re-Examination Requirement

Law360, New York (September 9, 2008, 12:00 AM EDT) -- On Sept. 4, 2008 the Federal Circuit finally addressed the access limiting re-examination question of what constitutes a substantial new question of patentability (SNQ) under 35 USC §303 raised by a reference previously considered in the original prosecution and/or used to challenge validity in a subsequent enforcement of the patent in federal court. It elucidated the analysis of whether a previously considered reference satisfies the “new light” requirement to establish a SNQ.

The fact pattern of the case illuminates the power of subsequent re-examination of a...
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