Appeal No. 2005-2512
Reexamination Control No. 90/006,431
While this document does not show any date, the earliest possible publication
date can be deduced from the fact that the bottom of the last page explains that the
“Arcadia” trademark is owned by Epic. In contrast, the Arcadia Manual, dated February
1995, identifies Archer as the owner of the “Arcadia” mark. As a result, the date of
RailMill PB is necessarily subsequent to the date Epic acquired Archer, which appears
to have been subsequent to May 22, 1995, which is after appellant’s April 17, 1995,
filing date. Specifically, at page 62, paragraph 175, of the final Office action, the
examiner cites the following article as evidence that Archer was acquired by Epic after
May 22, 1995: “EPIC Design Tech to acquire Archer [S]ystems in stock swap,”
Electronic News (May 22, 1995). Nor is an earlier date asserted in the only declaration
testimony of record which addresses that question. The declaration by Deng entitled
“Declaration of Prior Art Publication Date” (“Deng Declaration”), which accompanied the
Patent Owner’s “Prior Art Citation Pursuant to 37 C.F.R. 1.555,”16 explains that the
printing date of RailMill PB is believed to be “prior to” December 1995 without specifying
an earlier date. Deng Decl. para. 5. RailMill PB therefore has not been demonstrated
to have a publication date prior to appellant’s April 17, 1995, filing date.
16 Paper No. 9, received March 19, 2003.
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