First, as those with more knowledge on the technical side have pointed out...the examiners stance on the clock issue with synchronous or asynchronous...seesm to be flawed...BUT remember...he is mainly hanging his hat on his interpretation and definition of the "independent" claim...our wording and his don't match ..even our reworded claims on 11-20 were rejected for some reason even though we stated we followed his suggestion in some manner...obviously not enough of a manner that he wanted. And it is NOT just him hanging his hat on this rejection..it's him, his boss and one or two independent examiners not involved in the reexam joining in on the meetings and discussions too..that's another reason I see the appeal process as not being beneficial to us.

Remember also I posted yesterday one of the prior patents I was exposed to that had a final rejection but did not go the Appeal process but instead followed the route of submitting IDS sheets that opened things up for more discussion and compromise ending up with a reexam recert being issued...we could also follow the other avenue open to us...

(c) A submission as used in this section includes, but is not limited to, an information disclosure statement, an amendment to the written description, claims, or drawings, new arguments, or new evidence in support of patentability. If reply to an Office action under 35 U.S.C. 132 is outstanding, the submission must meet the reply requirements of § 1.111.

This is what occurred in my other incident..additional IDS forms filed and more open discussion that led to a reexam recert...that could be a more acceptable way to go before going through an appeal...IMO we should use that avenue open to us and if that still doesn't work it is just more ammunition we can use at the PTO Appeal board and at the Fed Appeals Court...this example from yesterday shows how it played out...just would like the IDS forms to be filed before a 6 month lag like this one had...

...(note: file marked lost on 4-1-2005 is AFTER the issuance of the cetificate..IMO it was mistake by the PTO to enter that one item)