Please re-read what I copied directly from the USPTO manual. Based upon what I was told yesterday by a person in the publications department, the first re-exam certificate will be published on Dec. 15 (which is before the decision on the pending second re-exam), therefore the second request is based upon claims in the issued reexam cert.
Am I missing something?
I.PRIOR REEXAMINATION MATURES TO CERTIFICATE WHILE LATER REEXAMINATION IS PENDING
If a second request for reexamination of a patent is filed where the certificate for the first reexamination of the patent will issue within 3 months from the filing of the second request, the proceedings normally will not be merged. If the certificate for the first reexamination proceeding will issue before the decision on the second request must be decided, the reexamination certificate is allowed to issue. The second request is then considered based upon the claims in the patent as indicated in the issued reexamination certificate rather than the original claims of the patent. The Legal Instrument Examiner (LIE) will print out a copy of the issued reexamination certificate and make it of record in the second reexamination file wrapper as a preliminary amendment.
In the order/denial decision on the second request, it should be noted that this preliminary amendment (the certificate) was entered into the reexamination file, and that the determination (order/denial) was based upon the new patent claims in the certificate.
A copy of the reexamination certificate should be included as an attachment to the order/denial decision to ensure that any third party requester of the second reexamination has a copy of the certificate claims
