Appeal No. 96-3189
Application 08/396,079
enjoy such free use of the invention.
This argument is simply wrong. The public is not free to use
appellants' invention until the term of any patent on it
expires. Manifestly, by intentionally and without good reason
delaying the beginning of the patent term, the end of the
patent term has been unjustifiably delayed and extended.
Appellants argue that the publication of a counterpart
Japanese priority document satisfies any requirement for
prompt disclosure to the public under Hull. It may be
questioned whether publication of a foreign counterpart
application in Japan constitutes disclosure to the public in
the U.S., except in the strictly legal sense that a
hypothetical person of ordinary skill in the art is assumed to
have perfect knowledge of all relevant prior art. The
Japanese publications, being in Japanese, certainly provide
less available disclosure than a U.S. patent. Assuming that
the foreign counterpart applications are made known in the
U.S., they provide no notice that appellants have filed for
patent protection in the U.S. and the public might reasonably
assume that they are free to use the invention if no U.S.
patent issues within a reasonable time. In any case, however,
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