Appeal No. 2003-0427
Application No. 09/808,950
anticipated by the “Internet version of eShop, the
latest update of which was launched on November 7,
1995.” The Examiner asserts that the cited references
describe the Internet version of eShop as it existed on
November 7, 1995. The Appellant has [sic] not
presented any evidence to effectively counter this
assertion. Furthermore, it should be emphasized that
all of the cited press releases are dated at least
several months prior to the Appellant’s [sic] priority
date of June 13, 1996. The press releases are dated as
follows: 1/23/1996; 12/7/1995; 11/7/1995; 7/12/1995;
and 2/1995. Therefore, the Examiner submits that the
Internet version of eShop is indeed valid prior art.
The examiner’s position is in keeping with In re Epstein, 32 F.3d
1559, 1565, 31 USPQ2d 1817, 1821 (Fed. Cir. 1994) which states
that the Office can properly rely on the dates set forth in the
Internet publications as proof that the disclosed and claimed
invention was known or used by others in this country before
appellants’ patent application because of the “inapplicability of
hearsay evidence rules in ex parte PTO examination . . . . ”
Appellants’ arguments (brief, pages 16 and 17) concerning a
secret use of the eShop process is without merit in light of the
extensive discussion of the same in the press releases. Thus, we
disagree with appellants’ conclusion that “an ‘examination of the
product’ (use of eShop) would not have revealed the process so as
to be a public use under §102(a).”
Appellants’ argument (brief, page 19) that “the documents do
not make clear that eShop actually established a mall system in
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