Interference No. 103,891
art under 35 U.S.C. § 102(a) and not § 102(b). 7 Both parties
further agree that if the Concept S presentation were prior art
under § 102(b) it would be a bar to patentability of either
side's claims.8 Notwithstanding the agreement of the parties as
to the applicability of § 102(a) and not § 102(b), patentability
under both paragraphs of § 102 has been raised and developed in
the record. It is our duty to consider both issues. As our
reviewing court stated in Perkins v. Kwon, 886 F.2d 325, 328-29,
12 USPQ2d 1308, 1311 (Fed. Cir. 1989):
The Board, by resolving both priority and
patentability when these questions are fully
presented, settles not only the rights be-
tween the parties but also rights of concern
to the public. The public interest in the
benefits of a patent system is best met by
procedures that resolve administratively
questions affecting patent validity that
arise before the PTO. To do otherwise is
contrary to the PTO’s mission to grant pre-
sumptively valid patents, 35 U.S.C. § 282,
and thus disserves the public interest.
The following are our findings of fact with respect to
the Concept S alleged prior art. Sometime prior to July 1989,
Abbott Laboratories, Flanders’ assignee, retained Lawrence
7 Flanders' brief at 13. Moorman brief at 9.
8 The Concept S presentation dated July 6, 1989 is more than
a year before either party's filing date.
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