Appeal No. 2006-0132
Application No. 09/946,627
As acknowledged by the appellants (the Brief, pages 10-11), the
court in Aluminum Co. of America, 14 USPQ2d at 1171 conceded
that:
at ‘first glance’ the letters did appear to meet the
public accessibility test of publication, by stating
that ‘thirty-three copies were made and distributed,
and not just to government groups ... Thirteen
nongovernmental companies and individuals received
copies too ... including big competitors like Kaiser
and Reynolds ... the export control notice ... did no
more than limit access to United States citizens, of
whom there are more than 220 million-scarcely the sort
of restriction that should ordinarily prevent a
document from being classified as a “printed
publication” under the statute. In addition, there was
no evidence in the record that access was ever denied
to anyone who sought it.
Nevertheless, the court found that the letters
were not accessible to the pubic in fact because all
the designees treated the letters as confidential and
not for further distribution.
In contrast to Aluminum Co. of America, there is no evidence in
this case that virtually everyone who received the Wanthal
document treated it as confidential. See, e.g., the Owens and
the Beckwith declarations in their entirety. As conceded by the
appellants, however, Aluminum Co. of America, 14 USPQ2d at 1172
supports the examiner’s determination that the restriction of the
type relied upon by the appellants does not preclude a
significant segment of the interested public from accessing the
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