Appeal 2006-1875
Reexamination Control No. 90/006,272
1 because, among other reasons, there is no indication that they received the
2 brochure before the critical date.
3 Is Mr. Miller's testimony that he received the Copes-Vulcan Brochure
4 before the critical date sufficient to establish by a preponderance of the
5 evidence that the brochure was "publicly accessible" and to shift the
6 burden of production to the Patent Owner?
7 Patent Owner argues that "[w]ithout conceding or denying, the truth of
8 the matters asserted in the Declaration, Patentee respectfully submits that the
9 Declaration, even if taken on its face, fails to meet the case law test for
10 showing that the Patentee or anyone else did, in fact, publish the Brochure
11 before June 30, 1997" (Br. 10). It is argued that "[t]here is no indication in
12 the Declaration of any public accessibility, distribution, indexing, public
13 display or 'associated facts and circumstances' surrounding a 'public
14 disclosure'" (Br. 11) and "even if the alleged 'receipt' in the Declaration is
15 taken as true, the mere occurrence of someone having possession of a
16 document does not mean that the document was 'published' under the
17 applicable law" (Br. 11). That is, Patent Owner argues that even if the
18 2003 Miller Declaration is accepted as true, it merely establishes receipt of
19 the brochure before the critical date and does not provide any description of
20 "surrounding circumstances" which would prove public accessibility.
21 "Whatever the 'surrounding facts' were, the Declaration does not provide
22 them, and the Patentee is unable to determine them [and] consequently, the
23 Patentee has no way of 'disproving' the surrounding facts which have not been
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