Appeal No. 1998-2639
Application 08/425,735
3. The purchase of the pool cue itself “in the fall of 1994" doe snot evidence that
the pool cue was “in public use or a sale in this country, more than one year
prior to the date of the application for patent in the United States.” Assuming,
without deciding, that the examiner’s declaration establishes public use or
sale or the pool cue in his possession, any such public use or sale is
significantly less than one year prior to the appellant’s date of application for
patent in the United States.5
In the brief filed May 10, 2000, and the answer mailed May 30, 2000, the appellant
and the examiner have referred to declarations apparently relied upon by Neil to show
certain acts by Neil prior to “the fall of 1994.” The examiner, for his part, finds these
materials insufficient to “eliminate the applied prior art” (answer mailed May 30, 2000,
page 3). While declarations and other evidence relating to dates of conception, etc. might
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have bearing on a rejection under 35 U.S.C. § 102(a), there is no such rejection before us
for our review. Lest the point be missed, evidence of any such acts have absolutely no
bearing on a rejection under 35 U.S.C. § 102(b).
5The examiner might reasonably believe that the pool cue was in existence prior to
the time he acquired it. To serve as a bar under 35 U.S.C. § 102(b), the pool cue had to
be in existence more than one year prior to April 20, 1995, the date on which Neil filed the
application before us. It is possible that information concerning manufacture of the
examiner’s pool cue (or others like it) may be available from the manufacturer of the pool
cue or from other reliable sources of such information. It is not, however, enough to
surmise that the pool cue was in existence more than one year prior to Neil’s filing date.
6 See also 37 CFR § 1.131.
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