So the question should be...When is a NIRC offical. When the examiner gave notice to the patentee (9-11-2009) or when it is published in the offical Gazette (11-15-2009). Also, did the challengers know that the patents were about to be recertified before 8-24-2009 when they submitted their request. Considering that they are not allowed to communicate with the USPTO and only in the form of a request for reexamination... my guess would be that the current reexam is based upon the old non- modified patent. How could it be otherwise unless somebody is giving them information they did not have any right to have. Before 8-24-2009 how could they possibly have known what form the new modified patent would be.

JMO