Appeal 2006-1875
Reexamination Control No. 90/006,272
1 though it is neither distributed nor indexed. See generally In re Klopfenstein,
2 380 F.3d 1345, 72 USPQ2d 1117 (Fed. Cir. 2004).
3 The initial burden of establishing that a reference was "publicly
4 accessible" so as to constitute a prior art printed publication lies with the
5 examiner. See In re Hall, 781 F.2d 897, 899, 228 USPQ 453, 455 (Fed. Cir.
6 1986) ("The proponent of the publication bar must show that prior to the
7 critical date the reference was sufficiently accessible, at least to the public
8 interested in the art . . . ."). "[P]reponderance of the evidence is the standard
9 that must be met by the PTO in making rejections . . . ." In re Caveney,
10 761 F.2d 671, 674, 226 USPQ 1, 3 (Fed. Cir. 1985). Once the U.S. Patent and
11 Trademark Office (USPTO) establishes a prima facie case, the burden of
12 production or going forward with the evidence shifts to the applicant. Cf.
13 In re Epstein, 32 F.3d 1559, 1570-71, 31 USPQ2d 1817, 1824-25 (Fed. Cir.
14 1994) (Plager, J., concurring) (discussing the concept of the prima facie case
15 in connection with a public use or on sale bar).
16 Interest of a witness is a factor to be considered in evaluating the
17 credibility of testimony. See Juicy Whip, Inc. v. Orange Bang, Inc.,
18 292 F.3d 728, 737-43, 63 USPQ2d 1251, 1257-62 (Fed. Cir. 2002).
19 Uncorroborated testimony might not be persuasive. As stated in Checkpoint
20 Systems, Inc. v. All-Tag Sec. S.A., 412 F.3d 1331, 1339, 75 USPQ2d 1200,
21 1205-06 (Fed. Cir. 2005):
22 "The law has long looked with disfavor upon invalidating patents on
23 the basis of mere testimonial evidence absent other evidence that
24 corroborates that testimony." Finnigan Corp. v. United States Int'l
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