Appeal 2006-1875
Reexamination Control No. 90/006,272
1 Principles of law
2 Reexamination is only conducted on the basis of "patents and printed
3 publications." 35 U.S.C. §§ 301-303; 37 C.F.R. § 1.552(a).
4 "Whether an asserted anticipatory document qualifies as a 'printed
5 publication' under § 102 is a legal conclusion based on underlying factual
6 determinations." Cooper Cameron Corp. v. Kvaerner Oilfield Prods.,
7 291 F.3d 1317, 1321, 62 USPQ2d 1846, 1849 (Fed. Cir. 2002).
8 The test for "printed publication" is stated in Bruckelmeyer v. Ground
9 Heaters, Inc., 445 F.3d 1374, 1378, 78 USPQ2d 1684, 1687 (Fed. Cir. 2006):
10 Whether a given reference is a "printed publication" depends on
11 whether it was "publicly accessible" during the prior period.
12 [In re Wyer, 655 F.2d 221, 226, 210 USPQ 790, 794 (CCPA 1981)].
13 A given reference is "publicly accessible"
14 upon a satisfactory showing that such document has been
15 disseminated or otherwise made available to the extent that
16 persons interested and ordinarily skilled in the subject matter or
17 art exercising reasonable diligence, can locate it and recognize
18 and comprehend therefrom the essentials of the claimed
19 invention without need of further research or experimentation.
20 Id. (quoting I.C.E. Corp. v. Armco Steel Corp., 250 F. Supp. 738, 743
21 [148 USPQ 537, 540] (S.D.N.Y. 1966)).
22 The requirement of "public accessibility" can be satisfied under a variety of
23 conditions, including when there has been a meaningful distribution,
24 indexing, or display of the material to the public interested in the art even
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