Wanted to confirm that what I said was indeed 100% fact. (E) is one of the situations that forms the basis for having a reexam order vacated. Just below it the Recreative Tecnlogies case is referenced. So I do believe that this possibity of vacating the order did not exist prior to Recreative Technologies case.

<(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).

As to (E) above, the decision of In re Recreative Technologies Corp., 83 F.3d 1394, 38 USPQ2d 1776 (Fed. Cir. 1996) is to be noted. See the discussion in MPEP § 2242 subsection II.A. as to the criteria for vacating a reexamination order in view of the decision.>

Opty