Appeal 2006-1875
Reexamination Control No. 90/006,272
1 DISCUSSION
2 Issues
3 An employee of the Third Party Requester, a member of the public
4 interested in the art, testified in a declaration that he received a copy of the
5 Copes-Vulcan Brochure before the critical date, but provided no details about
6 the conditions under which it was received. The '076 patent was originally
7 assigned to Copes-Vulcan (so this is the original assignee's own brochure) and
8 Patent Owner acquired Copes-Vulcan. It is not disputed that the brochure is
9 "printed." Patent Owner does not deny that the brochure, if it is a "printed
10 publication" prior to the critical date under § 102(b), anticipates all the
11 pending claims.
12 The ultimate issue is whether a preponderance of the evidence
13 establishes that the Copes-Vulcan Brochure was "publicly accessible" more
14 than one year before the filing date of the '076 patent so as to constitute a
15 "printed publication" bar under 35 U.S.C. § 102(b). Subissues are:
16 (1) Has the declaration testimony been corroborated?; (2) Is declarant's
17 testimony that he received the Copes-Vulcan Brochure before the critical date
18 sufficient to establish by a preponderance of the evidence that the brochure
19 was "publicly accessible" and to shift the burden of production to the Patent
20 Owner?; and (3) Has the Patent Owner submitted sufficient evidence
21 indicating that the brochure was not publicly accessible before the critical
22 date to tip the preponderance of evidence in its favor?
- 4 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: September 9, 2013