Appeal No. 1997-1746
Application No. 08/469,801
The obviousness-type double patenting rejection has not
been contested by the appellants on this appeal and therefore
is hereby summarily sustained without further comment.
For the reasons set forth below, however, the examiner’s
section 103 rejection cannot be sustained.
In assessing the section 103 rejection, the sole issue to
be resolved is whether the Tonkovich thesis was sufficiently
accessible on the critical date (i.e., more than one year
prior to the September 29, 1993 parent filing date for this
application) so as to constitute a “printed publication”
within the meaning of 35 U.S.C. § 102(b). The facts relevant
to this issue are not in dispute.
On or about September 2, 1992 (i.e., approximately three
weeks prior to the critical date), a noncirculating copy of
the thesis was shelved in the University Archives of the
University of Minnesota. Also on this date, the thesis author
and title information were entered into the on-line card
catalog of the University of Minnesota. Significantly, the
thesis was not cataloged or indexed by subject matter.
It appears to be the examiner’s implicit view, with which
we agree, that these factual circumstances by themselves would
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