Ex Parte 6039076 et al - Page 18



               Appeal 2006-1875                                                                              
               Reexamination Control No. 90/006,272                                                          
           1   evidence of routine business practice in 1997 that would tend to indirectly                   
           2   show that the brochure was not accessible to the public before the critical                   
           3   date.  Cf.  Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560,                          
           4   7 USPQ2d 1057 (Fed. Cir. 1988) ("Intel presented extensive uncontroverted                     
           5   evidence of business practice that was sufficient to prove that Exhibit 5 was                 
           6   widely available and accessible to the interested public before October 14,                   
           7   1979.").  Evidence of when the RAVEN control valve went "on sale" might                       
           8   also have been indirect evidence of when the brochure was published.                          
           9         Therefore, Patent Owner has not presented sufficient evidence that the                  
          10   Copes-Vulcan Brochure was not published before the critical date to tip the                   
          11   preponderance of the evidence in its favor.                                                   
          12         A preponderance of the evidence establishes that the Copes-Vulcan                       
          13         Brochure was "publicly accessible" more than one year before the                        
          14         filing date of the '076 patent so as to constitute a "printed publication"              
          15         bar under 35 U.S.C. § 102(b)                                                            
          16         We conclude that the 2003 Miller Declaration establishes by a                           
          17   preponderance of the evidence that the Copes-Vulcan Brochure was                              
          18   disseminated and/or otherwise became publicly accessible before the critical                  
          19   date of June 30, 1997, and constitutes a "printed publication" bar under                      
          20   35 U.S.C. § 102(b).  Patent Owner has not provided sufficient evidence to tilt                
          21   the preponderance of evidence in the other direction.  Patent Owner does not                  
          22   deny that the brochure, if it is a "printed publication" prior to the critical date           
          23   under § 102(b), anticipates all the pending claims.  Accordingly, the                         
          24   anticipation rejection of claims 1-41 under § 102(b) is affirmed.                             
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