dischino--

pls ask Fred if MH ruling is "non final" in my lowly opinion it is "non final"..see below from code of federal regs...and posted on uspto website: (emphasis plankton's)

IV. FEDERAL COURT DECISION ISSUES AFTER EX PARTE REEXAMINATION ORDERED

Pursuant to 37 CFR 1.565(a), the patent owner in an ex parte reexamination proceeding must promptly notify the Office of any Federal court decision involving the patent. Where the reexamination proceeding is currently pending and the court decision issues, or the Office becomes aware of a court decision relating to a pending reexamination proceeding, the order to reexamine is reviewed to see if a substantial new question of patentability is still present. If no substantial new question of patentability is still present, the order to reexamine is vacated by the CRU or TC Director and reexamination is concluded.

A non-final Federal Court decision concerning a patent under reexamination shall have no binding effect on a reexamination proceeding.

The issuance of a final Federal Court decision upholding validity during an ex parte reexamination also will have no binding effect on the examination of the reexamination. This is because the court states in Ethicon v. Quigg, 849 F.2d 1422, 1428, 7 USPQ2d 1152, 1157 (Fed. Cir. 1988) that the Office is not bound by a court's holding of patent validity and should continue the reexamination. The court notes that district courts and the Office use different standards of proof in determining invalidity, and thus, on the same evidence, could quite correctly come to different conclusions. Specifically, invalidity in a district court must be shown by "clear and convincing" evidence, whereas in the Office, it is sufficient to show nonpatentability by a "preponderance of evidence." Since the "clear and convincing" standard is harder to satisfy than the "preponderance" standard, deference will ordinarily be accorded to the factual findings of the court where the evidence before the Office and the court is the same. If sufficient reasons are present, claims held valid by the court may be rejected in reexamination.

On the other hand, a final Federal Court holding of invalidity or unenforceability (after all appeals), is binding on the Office. Upon the issuance of a final holding of invalidity or unenforceability, the claims being examined which are held invalid or unenforceable will be withdrawn from consideration in the reexamination. The reexamination will continue as to any remaining claims being examined. Thus, the reexamination will continue if any original, new, or amended claim being examined that was not found invalid or unenforceable by the Court. If all of the claims being examined in the reexamination proceeding are finally held invalid or unenforceable, the reexamination will be vacated by the CRU or TC Director as no longer containing a substantial new question of patentability and the reexamination will be concluded. If not all claims being examined were held invalid (or unenforceable), a substantial new question of patentability may still exist as to the remaining claims. In such a situation, the remaining claims would be examined; and, as to the claims held invalid/unenforceable, form paragraph 22.20 should be used at the beginning of the Office action.