Appeal No. 97-2621
Application 08/432,442
case. Without reviewing the authorities cited by
the respective parties hereto, it is sufficient to
say that they appear to establish the rule that an
accidental showing in a prior patent does not
anticipate a later invention where the thing so
shown is not essential to the first invention, and
was not designed, adapted or used to perform the
function which it performs in the second invention,
and was neither intended nor appreciated by the
patentee, and when the first patent contains no
suggestion of the way in which the result sought is
accomplished by the second inventor. In Re
Application of William M. Bager et al., CCPA 1931, 8
USPQ 484, at page 486.
In In re Meng, 492 F.2d 843, 847, 181 USPQ 94, 97 (CCPA
1974), the Court of Customs and Patent Appeals stated:
We are aware, of course, that a claimed
invention may be anticipated or rendered obvious by
a drawing in a reference, whether the drawing
disclosure be accidental or intentional. In re
Seid, 34 CCPA 1039, 161 F.2d 229, 73 USPQ 431
(1947).
The In re Meng decision cited to In re Seid, 161 F.2d 229,
231, 73 USPQ 431, 433 (1947), which in turn stated (citing
back to In re Bager, the case cited by the appellants):
[A]n accidental disclosure, if clearly made in a
drawing, is available as a reference. In re William
M. Bager et al., 18 C.C.P.A. (Patents) 1094, 47 F.2d
951, 8 USPQ 484; In re Wagner, 20 C.C.P.A. (Patents)
985, 63 F.2d 987, 17 USPQ 243. (Emphasis added.)
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