Appeal No. 1997-1746
Application No. 08/469,801
thereof for disclosure relevant to the subject matter of
interest.
To summarize, the Tonkovich thesis was capable of being
discovered and accessed but only upon the expenditure of
extraordinary resources. However, as indicated above, the
test for accessibility vis-à-vis a “printed publication” is
based upon the exercise of “reasonable diligence” rather than
the expenditure of extraordinary resources. In applying this
“reasonable diligence” test to the case at bar, we conclude
that the Tonkovich thesis cannot be regarded as a “printed
publication” within the meaning of 35 U.S.C. § 102(b).
It follows that we cannot sustain the examiner’s section
103 rejection of the claims on appeal as being unpatentable
over the Tonkovich thesis in view of Gesser.
For the reasons expressed above, we have sustained the
obviousness-type double patenting rejection but not the
section 103 rejection of the claims on appeal.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
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