I do not believe that we have seen a first office action from the examiner. Since a second office action is intended to be a final rejection, it would appear that what we want is a first office action with a conclusion of a NIRC (notice of intent to issue a reexam certificate). As indicated in an earlier post, when I spoke with a supervisor at the USPTO, she had indicated that no office action had yet been conferenced by the examiner.

MPEP 2262 Form and Content of Office Action[R-7]

The examiner’s first Office action will be a state­ment of the examiner’s position and should be so complete that the second Office action can properly be made a final action.

I.PANEL REVIEW CONFERENCE

After an examiner has determined that the reexami­nation proceeding is ready for an Office action, the examiner will formulate a draft preliminary Office action. The examiner will then inform his/her **>Central Reexamination Unit (CRU) Supervisory Patent Examiner (SPE) or Technology Center (TC) Quality Assurance Specialist (QAS)< of his/her intent to issue the Office action. The *>CRU SPE/TC QAS<will convene a panel review conference, and the con­ference members will review the patentability of the claim(s) pursuant to MPEP § 2271.01. If the confer­ence confirms the examiner’s preliminary decision to reject and/or allow the claims, the proposed Office action shall be issued and signed by the examiner, with the two other conferees initialing the action (as “conferee”) to indicate their presence in the confer­ence. If the conference does not confirm the exam­iner’s treatment of the claims, the examiner will reevaluate and issue an appropriate Office action.

MPEP 2271

It is intended that the second Office action in the reexamination proceeding following the decision ordering reexamination will **>generally be made final. The criteria for making a rejection final in an ex parte reexamination proceeding is analogous to that set forth in MPEP § 706.07(a) for making a rejection final in an application.

2287Conclusion of Ex Parte Reexamina­tion Proceeding [R-7]

Upon conclusion of the ex parte reexamination pro­ceeding, the examiner must prepare a “Notice of Intent to Issue Ex Parte Reexamination Certificate” (NIRC) by completing form PTOL-469.