Appeal 2007-1685
Application 10/106,402
& Leather Co. retained its manufacturing specifications as confidential,
internal documents which were unavailable to the public.
Appellant has attempted to show that Wenzhou is not a printed
publication under 35 U.S.C. § 102(a) through an unsworn Statement of
Friendog Xie Huaien. Mr. Huaien’s statement suggests that the smoking
method described in Wenzhou was invented by Mr. Chong. However, Mr.
Huaien’s statement does not establish invention of the claimed subject
matter prior to February 6, 2001. See 37 C.F.R. §1.131. Likewise, Mr.
Huaien’s statement that Wenzhou discloses a manufacturing standard does
not establish that the document was not available to the public, e.g., outside
contractors. Accordingly, we find that Appellant has failed to show that the
Examiner improperly relied on Wenzhou as a printed publication under 35
U.S.C. § 102(a).2
Appellant has not addressed the merits of the Examiner’s rejections
based on Wenzhou. Therefore, the rejection of claims 1, 6, 11-20, and 25-33
under 35 U.S.C. § 103(a) as unpatentable over AAPA in view of Wenzhou
and as evidenced by Lynch is affirmed and the rejection of Claims 2-5 and
7-10 under 35 U.S.C. § 103(a) as unpatentable over AAPA in view of
Wenzhou and further in view of Lynch is affirmed.
II. Has the Examiner identified a teaching, motivation or suggestion
in the prior art for combining AAPA and Meyer in the manner claimed?
2 Moreover, the reported February 06, 2001 publication date is more than
one year prior to the U.S. filing date of this application. Thus, the reported
publication date indicates Wenzhou to be available as prior art under 35
U.S.C. § 102(b). Thus, Wenzhou cannot be antedated with a showing under
37 C.F.R. §1.131 or a showing pursuant to M.P.E.P. 715.01(c).
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