Appeal No. 2005-2643
Reexamination Control No. 90/005,842
use the funds to compensate all depositors for half their loss due to inflation.”). The fact
that the initially proposed accounts were never adopted does not detract from
Mukherjee’s status as a publication disclosing the desirability of such accounts. See In
re Sivaramakrishnan, 673 F.2d 1383, 1384-85, 213 USPQ 441, 442 (CCPA 1982):
That Gable may not have actually reduced the specific mixture of resin
and cadmium salt to practice has no bearing on whether the mixture is
"described in a printed publication" under §102(b). See e.g., Mannix Co.
v. Healey, 341 F.2d 1009, 1010 n.1, 144 USPQ 611, 612 n.1 (CA 5 1965);
Siegel v. Watson, 267 F.2d 621, 624, 121 USPQ 119, 121 (CADC 1959);
Ritter v. Rohm & Haas Co., 271 F. Supp. 313, 341, 154 USPQ 518,
542 (S.D.N.Y. 1967). Cf. In re Deters, 515 F.2d 1152, 1155, 185 USPQ
644, 647 (CCPA 1975) (that a reference is a "paper patent" is irrelevant to
its value as evidence of level of skill in the art); In re Blake, 53 CCPA 720,
724, 352 F.2d 309, 312, 147 USPQ 289, 291 (1965) (patent statute does
not require commercial use of subject matter of a prior-art disclosure for
that disclosure to qualify as a reference).
Therefore, assuming appellant is correct to construe claim 1 as requiring a continuous
relationship between inflation adjustments of the deposit accounts and the inflation rate,
the claim would read on the initially proposed indexed deposit accounts.
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