Appeal No. 1997-1746
Application No. 08/469,801
reasonable diligence, can locate it . . .” In re Wyer, 655
F.2d 221, 226, 210 USPQ 790, 794 (CCPA 1981) (quoting I.C.E.
Corp. v. Armco Steel Corp., 250 F. Supp. 738, 742, 743, 148
USPQ 537, 540 (SD NY 1966)). As expressed in the case of In
re Cronyn, 890 F.2d 1158, 1161, 13 USPQ2d 1070, 1072 (Fed.
Cir. 1989), documents are not accessible to the public if
“they had not been either cataloged or indexed in a meaningful
way.”
With these legal principles in mind, we are convinced
that on the critical date the Tonkovich thesis was not
accessible to the extent necessary to render it a “printed
publication.” This is because, as of the critical date, the
thesis “had not been either cataloged or indexed in a
meaningful way” such that it could be located by “persons
interested and ordinarily skilled in the subject matter or
art, exercising reasonable diligence.”
We are unpersuaded by the examiner’s argument that the
Ray et al. reference would have rendered the thesis adequately
accessible. As correctly pointed out by the appellants, this
reference provides no information from which a person could
have determined that any of four listed authors (including the
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007