The '336 reex 90/009,457 is clearly not based on the (soon-to-be-published) issued reex certificate of the merged (90/008,237 90/008,306 90/008,474) '336 reex.

90/009,457 is a reex of claims 1-10. The NIRC has cancelled claims 3-5 and 8.

The examiner (Peikari) of 90/009,457 quotes MPEP 2242 and underlines "The decision on the second or subsequent request is thus based on the claims in effect at the time of the determination (37 CFR 1.515(a))." and then states (in bold print) in his own words "no substantial new question of patentability is raised in this reexamination proceeding with respect to claims 11-20, since these claims are not in effect in the patent at the time this determination is made."

- The NIRC clearly shows that claims 11-20 are in effect. It states that claims 11-12, 16-17, 19-20 (re-numbered 11-16) are newly presented claims patentable and 13-15 and 18 are newly presented cancelled claims.

Examiner Peikari has made it clear that his determination could not be based on the merged reex that has been issued a reex certificate due to the timing of when his determination was made. This is a fact not an opinion.

IMHO, he had no choice but to grant the reex and it will be blown out of the water.

GLTAL