Appeal No. 1998-2639
Application 08/425,735
35 U.S.C. § 102(b) provides:
A person shall be entitled to a patent unless...
(b) the invention was patented or described in a printed publication
in this or a foreign country or in public use or on sale in this country, more
than one year prior to the date of the application for patent in the United
States.
The rejection advanced by the examiner must be reversed for the simple reason
that the examiner has produced absolutely no evidence whatsoever relating to the
patenting, description in a printed publication, public use or sale of the pool cue in his
possession, more than one year prior to the date of the application for patent in the United
States as required by 35 U.S.C. § 102(b).
Whenever any rejection predicated on 35 U.S.C. § 102(b) is made, careful note
must be taken of the filing date of the application (in his instance April 20, 1995), and the
date of the patent, publication, or activity relied upon as the basis for the rejection (in this
instance, the date of purchase of the pool cue). To bottom a rejection of Neil’s claims on §
102(b), the examiner must come forward with evidence having a date on or before April
19, 1994, that is, on a date more than one year prior to the April 20, 1995, filing date of
Neil’s application.
The examiner says the cue was purchased “in the fall of 1994.” According to
Merriam-Webster’s Collegiate Dictionary, Tenth Edition, copyright 1966, “fall” as used in
connection with a period of the year is defined as “of, relating to, or suitable for autumn.”
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