Appeal No. 1999-0347 Page 9
Application No. 08/804,635
The printed publication rejection
We will not sustain the rejection of claims 1, 2, 4, 8,
9, 11, 13, 14 and 16 to 18 under 35 U.S.C. § 102(b).
We agree with the appellant's argument (brief, pp. 8-13,
and reply brief, p. 7) that neither the Honigsbaum letter or
the Kari letter constitute a "printed publication" under 35
U.S.C.
§ 102(b). In that regard, the "touchstone" of a printed
publication is "public accessibility," In re Hall, 781 F.2d
897, 899, 228 USPQ 453, 455 (Fed. Cir. 1986), and information
is publicly accessible if "interested members of the relevant
public could obtain [it] if they wanted to," Constant v.
Advanced Micro-Devices, Inc., 848 F.2d 1560, 1569, 7 USPQ2d
1057, 1062 (Fed. Cir. 1988). The proponent of the publication
bar must show that prior to the critical date the reference
was sufficiently accessible, at least to the public interested
in the art, so that such a one by examining the reference
could make the claimed invention without further research or
experimentation. In re Hall, supra. In this case, the
examiner has not carried that burden since the examiner has
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