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” or "a reasonable likelihood that the requester will prevail" is present. This section further discusses the claims considered in deciding the request.
The decision on the request for reexamination should discuss all of the patent claims requested for reexamination.
The examiner should limit the discussion of those claims in the order for reexamination as to whether a substantial new question of patentability has been raised or "a reasonable likelihood that the requester will prevail" is present.
Amendments and/or new claims present in any copending reexamination or reissue proceeding for the patent to be reexamined will not be considered nor commented upon when deciding a request for reexamination.
2644 Prior Art on Which the Determination Is Based
MPEP SECTION SUMMARY
The determination of whether or not “a substantial new question of patentability” or "a reasonable likelihood that the requester will prevail" is present can be based upon any prior art patents or printed publications.
The examiner is not limited in making the determination based on the patents and printed publications relied upon in the request. The examiner can find “a substantial new question of patentability” or "a reasonable likelihood that the requester will prevail" based upon the prior art patents or printed publications relied upon in the request, a combination of the prior art relied upon in the request and other prior art found elsewhere, or based entirely on different patents or printed publications.
2643 Claims Considered in Deciding Request 
