Appeal No. 97-2621
Application 08/432,442
The considerations set out in In re Bager appear to
control the issue in this case concerning the assertion of
accidental anticipation. The problem, however, is that the
appellants have failed to apply all of the considerations to
the facts of this case. In our view, In re Bager, 8 USPQ at
486, sets forth four separate requirements for regarding a
teaching as ineffective on the basis of accidental disclosure:
1. The thing so shown is not essential to the
first invention.
2. The thing so shown was not designed,
adapted, or used to perform the function which it
performs in the second invention.
3. The thing so shown was neither intended nor
appreciated by the patentee.
4. The first patent contains no suggestion of
the way in which the result sought is accomplished
by the second inventor.
At least requirements 2 and 3 above have not been
satisfied by the appellants. For instance, it cannot be
reasonably said that the appellants have shown that the linear
projections from electrode G2b in Chen was not in fact “used”
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