Appeal No. 2001-1131
Application No. 08/761,566
for the stated rejection. The use of the public use provision of 35 U.S.C. § 102(b) is a
bar to patentability if the claimed invention was publically used or offered for sale more
than one year before the filing of the claimed invention. The examiner maintains that
Amdur evidences that there was a public usage more than one year prior to the filing of
the application. (See answer at page 5.) Since the examiner has not set forth a
rejection under 35 U.S.C. § 102, it is unclear if a rejection under public use or sale is set
forth. We will interpret the rejection to be under 35 U.S.C. § 103 as an obvious
variation of the Beta version of the Microsoft software which was publically used more
than one year before the filing of the application for patent as evidenced by Amdur.
See LaBounty Manuf. Inc. v. U.S. Int’l Trade Comm’n, 958 F.2d 1066, 1069, 22
USPQ2d 1025, 1028 (Fed. Cir. 1992) (“Section 102(b) may create a bar to patentability
either alone, if the device placed on sale is an anticipation of the later claimed invention
or, in conjunction with 35 U.S.C. Section 103 (1988), if the claimed invention would
have been obvious from the on sale device in conjunction with the prior art”), see also
MPEP 2133.03.
35 U.S.C. § 103
At the Oral Hearing, appellants admitted that the Beta version of the Microsoft
software disclosed by Amdur was used more than one year prior to the filing of this
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