Appeal No. 96-0112
Application 07/877,913
mean that the program used to simulate the claimed FCC process has been used to simulate other FCC
processes which other FCC processes were subsequently actually run and which actual runs confirmed
the computer's prediction and are now in use in three commercial FCC units. The paragraph could also
be construed to mean that the program used to simulate the claimed FCC process was actually tested
by actually running an FCC process according to the program and the actual testing confirmed the
program's predictions and the claimed FCC process is now in use in three commercial FCC units. If
the latter is intended then a question arises under 35 U.S.C .§ 102 whether or not the claimed invention
was "known or used by others... in this country or a foreign country before the invention thereof by
applicant for patent" (35 USC 102(a)) or whether the invention was "in public use or on sale in this
country, more than one year prior to the date of application for patent in the United States" (35 USC
102(b)). Accordingly, applicants should file a clear statement of what was intended. If the former was
intended then applicants should also positively state to the best of their knowledge and belief that the
claimed FCC process was not in public use or on sale more than one year prior to the filing of their
application nor was it known or used by others before the filing date of their application for patent.
Secondly, throughout their disclosure, appellants speak of optimizing the various reaction
parameters by using the computer program referenced in the Adornato declaration. However, as we
stated in our opinion, Owen clearly suggests that the various reaction parameters which appellants
optimize are known in the art to affect the product obtained. Thus, the variables can be said to be
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