Appeal No. 2006-0132
Application No. 09/946,627
After diligent efforts, Applicant was unable to obtain
declarations or affidavits from the Owens’ co-authors
because at least The Boeing Company did not feel
comfortable with their employees making such
statements. The only co-author attending the May 2000
SAMPE Conference was Steven Wanthal, who presented the
paper in a closed session and is employed by The Boeing
Company.
Finally, in spite of ample opportunities to submit additional
evidence, the appellants proffer no other evidence to demonstrate
that there was either explicit or implicit obligation of
confidentiality. Nor was there any evidence that the regulations
relied upon precluded a significant segment of the interested
public from accessing the information in Wanthal.
Yet, the appellants argued that the Owens and Beckwith
declarations were sufficient to establish that Wanthal was not
publicly accessible and thus, it is not “prior art” within the
meaning of 35 U.S.C. § 102(a) or § 102(b). See the Brief, pages
9-13 and the Reply Brief, pages 1-5. The appellants also argued
that the other prior art references relied upon by the examiner
would not have suggested the claimed subject matter within the
meaning of 35 U.S.C. § 103(a). See the Brief, pages 13-24. The
examiner, on the other hand, took the position that Wanthal was
qualified as “printed publication” within the meaning of
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