Appeal No. 2007-0111
Reexamination 90/006,297
1 As noted above, Vandenberg was cited and applied on prior art grounds
2 against the claims in the original examination. In the original examination, the
3 examiner determined that the claims as allowed in the patent under reexamination
4 were entitled to the filing date of Italian priority application 25,109 filed July 27,
5 1954, thus allegedly antedating Vandenberg. (Application 07/883,912, paper 95.)
6 A threshold inquiry, therefore, is whether Vandenberg raises a substantial new
7 question of patentability within the meaning of previous 35 U.S.C. § 303(a)
8 (2001), i.e. whether the citation of Vandenberg in the original examination bars the
9 rejections based on Vandenberg in this reexamination proceeding. We hold that,
10 under the particular facts of the present case, the citation of Vandenberg in the
11 original examination does not bar rejections based on it in this reexamination.
12 The Director determined, on the basis of non-statutory double patenting over
13 the claims of two United States patents not cited in the original examination, that a
14 substantial new question of patentability within the meaning of 35 U.S.C. § 303(a)
15 was raised with respect to the claims of the subject patent. (June 7, 2002
16 reexamination order, paper 1.) 35 U.S.C. § 303(a) in effect on June 7, 2002
17 provided:
18 (a) Within three months following the filing of a request for
19 reexamination under the provisions of section 302 of this title, the
20 Director will determine whether a substantial new question of
21 patentability affecting any claim of the patent concerned is raised by
22 the request, with or without consideration of other patents or printed
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