Appeal No. 1998-2639
Application 08/425,735
The American Heritage Dictionary, Second College Edition, copyright 1982, simply
defines fall (among other things) as “Autumn.” Autumn, of course, is the season between
summer and winter, “lasting from the autumnal equinox to the winter solstice, and from
September to December in the Norther Hemisphere.” Id.
Unless the examiner purchased the pool cue in the Southern Hemisphere (and
there is no indication that this unlikely event is the case), the time period of purchase was
sometime between September and December 1994. Even were we to assume that the
examiner purchased the pool cue on the earliest date that can be considered “fall” under
the usual definition, that is September 1, 1994, that date is at most six months and 19 days
before the April 20, 1995, filing date of the application. The “more than one year” provision
of § 102(b) is simply not satisfied.3
Taking each of the provisions of 35 U.S.C. § 102(b) in turn, it is evident that the
examiner’s position is wanting.
1. The examiner has advanced no evidence that shows that the pool cue
in his possession was “patented ... in this or a foreign country...more than
one year prior to the date of the application for patent in the United States.”
2. The pool cue itself is a thing and does not constitute a printed publication,
much less “a printed publication in this or a foreign country...more than one
3 Even were we to agree with the examiner’s assertion that July 1994 is in the fall of
1994 (answer mailed May 30, 2000), which we do not, July 1994 is not more than one year
prior to April 20, 1995.
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