Appeal No. 2006-0132
Application No. 09/946,627
document from commercially exploiting the information obtained
therefrom. The appellants simply do not have any control over
the flow or use of the information provided in the Wanthal
document. In fact, the evidence relied upon by the appellants
shows that those who attended the Closed Session in question
and/or those who bought the copies of the Wanthal document have
the same distribution rights as the appellants in accordance with
the government regulations referred to above. The appellants
proffer no evidence that these government regulations prevented
commercial exploitation of the information in Wanthal or denied
the interested U.S. public, such as U.S. defense industries, from
accessing the information in Wanthal. As such, it cannot be said
that the information in the Wanthal document was unavailable to a
significant segment of the interested public.
The appellants rely on Northern Telecom Inc. v. Datapoint
Corp., 908 F.2d 931, 15 USPQ2d 1321 (Fed. Cir. 1990), Ex parte
Kroenert, 144 USPQ 133 (Bd. App. 1960), and Aluminum Co. of
America v. Reynolds Metals Co., 14 USPQ2d 1170 (N.D. Ill. 1989).
See the Brief, pages 9-13. According to the appellants (id.),
these cases support their position that Wanthal is not “prior
art” within the meaning of section 102(a) or 102(b). The
appellants’ reliance on these cases is misplaced.
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