Appeal No. 2005-2512
Reexamination Control No. 90/006,431
Arcadia Manual discloses the same RailMill product that is disclosed in the RailMill
documents, the February1995 publication date of the Arcadia Manual (which appellant
has not challenged) must be assumed to apply as well to the RailMill documents.
Fin.Act. 9. The fact that the Arcadia Manual was published prior to appellant’s filing
date does not establish that any of the RailMill documents relied on as prior art were
published prior to that date. The same criticism applies to the examiner’s reliance on
the fact that page 16 (as numbered at the bottoms of the pages by appellant) of the
source code appendix to the ‘952 patent shows a copyright date of 1992 and includes
the following RailMill code segment: “if (strcmp (progname, “railmill”) ) return 1[.]”
Ans. 18-19.
We also agree with appellant that the examiner is incorrect to treat the three
RailMill documents in the § 102 rejection based thereon as “one teaching,” in support of
which he cites MPEP § 2131.01 (“Multiple Reference 35 U.S.C. 102 Rejections”).
Fin.Act. 9. In the Final Action, the examiner explained that “each one [of the RailMill
documents] refers to the earliest version of RailMill which as noted (See Arcadia,
discussed earlier) . . . was publicly available by at least 11/1994.” Id. This argument is
unpersuasive for the reasons given above in the discussion of the examiner’s reliance
on Epstein. In the Answer, the examiner gave the alternative explanation that the three
documents “each show inherent features in greater detail than may have been
disclosed in the other,” Ans. 18, which is one of the three justifications given in MPEP §
19
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