Appeal No. 1997-1746
Application No. 08/469,801
mentioned on-line card catalog. On page 10 of the answer, the
examiner describes his position as follows:
The Ray et al reference was available in 1990
and the Tonkovich thesis was available on September
2, 1992. And as shown above and through the
declarations submitted by appellants, and a key word
search of the title and author lead to only two
records, one of which was the Tonkovich thesis
(Declaration of Sascha Von Mende, paragraph 4. Also
note paragraph 6). Therefore, the Ray et al
reference was the missing aid to uncover the
Tonkovich thesis which was publicly available before
September 29, 1992.
The statutory phrase “printed publication” has been
interpreted to mean that before the critical date the
reference must have been sufficiently accessible to the public
interested in the art; dissemination and public accessibility
are the keys to the legal determination whether a prior art
reference was “published.” Constant v. Advanced Micro-
Devices, Inc., 848 F.2d 1560, 1568, 7 USPQ2d 1057, 1062 (Fed.
Cir.), cert. denied, 488 U.S. 892 (1988). The predecessor of
our reviewing court has stated that a reference is a “printed
publication” and a bar to patentability “upon a satisfactory
showing that such document has been disseminated or otherwise
made available to the extent that persons interested and
ordinarily skilled in the subject matter or art, exercising
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