Some quotes from MPEP might help us to understand the why of the most recent Henneman communication.

The above suggests that the communication from Henneman would be improper, unless the examiner asked for it. I suggest that Henneman and examiner talked and Henneman pointed out the following from MPEP and the examiner said put it in writing. Note bold and underlined.

<"Appropriate circumstances" under 37 CFR 1.181(a)(3) exist to vacate the order granting reexamination where, for example:

(A) the reexamination order is not based on prior art patents or printed publications;

(B) all claims of the patent were held to be invalid by a final decision of a Federal Court after all appeals;

(C) reexamination was ordered for the wrong patent;

(D) reexamination was ordered based on a duplicate copy of the request; or

(E) the reexamination order is based wholly on the same question of patentability raised by the prior art previously considered in an earlier concluded examination of the patent by the Office (e.g., the application which matured into the patent, a prior reexamination, an interference proceeding).>

Opty