Appeal No. 2007-0111
Reexamination 90/006,297
1 States patents, as evidenced by the examiners’ double patenting rejections, and the
2 examiner’s incorrect assessment of the effective filing date of the claims in the
3 original examination was based on the patentees’ own erroneous representations of
4 the facts.
5 The patent owner points out that we have relied on the 2004 version of the
6 MPEP – a version not in print until after the date on which this reexamination was
7 ordered. (Amended appeal brief filed on February 23, 2006 at 14.) This argument
8 is unpersuasive because we are relying on the statute (construed in light of legal
9 precedents) as our legal authority. The MPEP merely establishes that our position
10 is in accord with the PTO’s interpretation of previous 35 U.S.C. § 303(a). Thus,
11 the date on which the MPEP published is not particularly relevant.
12 The patent owner appears to be reading Portola, 110 F.3d at 790, 42
13 USPQ2d at 1299, as repudiating any assertion of error on the part of an examiner.
14 (Amended appeal brief at 22, 25-26.) The patent owner further contends that
15 Portola and In re Recreative Technologies Corp. stand for the unequivocal
16 proposition that “reexamination can never be based on old art alone.” (Amended
17 appeal brief at 24.)
18 We disagree. The patent owner’s position regarding our reviewing court’s
19 repudiation of any assertion of error is in direct conflict with the primary purpose
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