I believe there is a big difference in determination of an SNQ using prior art, and "Old Art." Here are the MPEP passages that define how the SNQ is determined in each case.

<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 the Federal court system or by the Office in a previous examination. >

IMHO, A relatively easy standard to meet for an SNQ.

Now "Old Art." But first its definition.

<Before making such a rejection, the examiner should check the patent's file history to ascertain whether the art that will provide the basis for the rejection was previously cited/considered in an earlier concluded Office examination of the patent (e.g., in the examination of the application for the patent). For the sake of expediency, such art is referred to as "old art" >

<If the "old art" provides the sole basis for a rejection, the following applies:

For a reexamination that was ordered on or after November 2, 2002 (the date of enactment of Public Law 107-273; see Section 13105, of the Patent and Trademark Office Authorization Act of 2002), reliance solely on old art (as the basis for a rejection) does not necessarily preclude the existence of a substantial new question of patentability (SNQ) that is based exclusively on that old art. 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), in view of a material new argument or interpretation presented in the request.

First of all, we are no longer talking a simple matter of whether or not a reasonable examiner would find the prior art important. The bar has been raised. And they could have just said presented/viewed in a new light or a different way and left it at that. IMHO, by adding that final phrase in bold, the PTO raised the bar even further. What would be the rationale for incuding that last phrase if it had no meaning beyond what was already conveyed in the phrase that preceeded it?

All IMHO,

GLTA, Opty