Some interesting facts that I just became aware of.

The case that is referenced in the Henneman letter is Recreative Technologies. That case went all the way to the Federal Court of Appeals and it took place back in 1996.

The interesting thing that I just discovered is the following:

<In view of Recreative Technologies, the PTO amended the Manual of Patent Examining Procedure (MPEP) which, although it does not have the force of law, provides guidance and instructions to examiners. See Refac Int'l, Ltd. v. Lotus Dev. Corp., 81 F.3d 1576, 1584 n.2, 38 USPQ2d 1665, 1671 n.2 (Fed. Cir. 1996) ("The MPEP does not have the force and effect of law; however, it is entitled to judicial notice as the agency's official interpretation of statutes and regulations, provided it is not in conflict with the statutes and regulations."). The section entitled "Scope of Reexamination" was amended to narrow the grounds of rejection permitted during reexamination. >

Prior to Recreative Techologies, that MPEP section which I had previously posted which allows a reexam order to be vacated if it is based on same prior art and same question did not previously exist. I find some relief in the realization that the USPTO did not pursue the Recreative Technologies case in spite of the MPEP rule.

Opty