Appeal No. 1997-4438
Application No. 08/173,431
significance and the technical complexities of the invention.”
Ex parte Kuklo, 25 USPQ2d 1387, 1390 (Bd. Pat. App. & Int.
1992).
Based upon the foregoing, the burden shifted to appellant
to show by evidence that the invention was not reproducible
based on public use and the publications describing the
invention. Tone Bros., 28 F.3d at 1201, 31 USPQ2d at 1325.
Attorney argument in the brief can not take the place of such
evidence. In the absence of such evidence, we find that
appellant had made “public use” of the claimed invention
within the meaning of 35 U.S.C.
§ 102(b) prior to the critical date. In summary, the 35
U.S.C.
§ 102(b) “public use” rejection of claims 1, 2, 4 -13, and 20
is sustained.
Turning to the 35 U.S.C. § 102(b) rejection of claims 1,
2, 4-11, and 20 as being anticipated by Hyperbole, the
examiner states (Answer, page 6) that any missing elements in
Hyperbole
10
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