We forgive your having missed stuff! At least I do! It has been comforting to KNOW that you (and Eggbert, and others) are all over this thing, giving it your best for the benefit of ALL.

Now, I'm trying to wrap my head around what you are saying.... Are you suggesting that with the additions to the '336 file record that presumeably became a formal record with the announcement/processing of the re-exam cert, that the basis for the newly initiated re-exam may have essentially evaporated (since the "new" prior art has already been considered and is now identified as such in the file record)? If so, that could indeed "short curcuit" the new re-exam process.

Now the concerns in my feeble mind are whether there is any communication between the old examiner and new examinier, whether the new examiner can readily figure this out independently (avoiding a pointless rehash) and, if either of these have occurred, what kind of paperwork housekeeping is required to make the new re-exam go away. It does seem that the key is for the new examiner to recognize what you have pointed out - this stuff has already been re-examined and the result has already been through the complete re-exam process (final reviews with peers/superiors).

If it has come down to a matter of paper housekeeping, IMO this means the recent new recert becomes the real deal, along with the publication in the Gazette - which we KNOW, with a pretty high level of certainty, is coming.

Might this happenstance explain some things that have confused us all recently? Like why are they proceeding with the publication in the Gazette when there is a new re-exam in process? Maybe if the right wheels were meshing at the PTO, they knew all along that the basis of the new re-exam was going to fall apart with the issuance of the re-cert. So procedurally they had to move forward with the new re-exam UNTIL the things you mention become a matter of formal record.

Interesting speculation. Still seems difficult for me to understand how documented history of what was considered/looked at in the prior re-exam wouldn't be considered as a matter of record as soon as it hit the file - which should have been awhile back in a literal "hard copy" sense. But then again, perhaps this stuff didn't hit the record room (recognizing the PTO "system") until the re-cert was done, and therefore hadn't been scanned into their formal electronic file system making it visible to the new examiner. Perhaps the new examiner was, by virtue of the PTO "system", ignorant of all the facts going in, but should now have all the facts in his lap.

Comment/correction requested!

'Cuz I KNOW nuttin'!

SGE