Appeal 2006-1875
Reexamination Control No. 90/006,272
1 provided by Mr. Miller, since Mr. Miller has not come forward with them."
2 Br. 14. Patent Owner further argues (Br. 15):
3 Patentee submits that at present, the circumstances surrounding
4 the receipt of the Brochure are still unknown, and Patentee has been
5 unable to determine them. Further, Patentee in this proceeding does not
6 have any discovery provisions to investigate the facts surrounding
7 Mr. Miller's alleged receipt of the Brochure. These facts are
8 knowledge that apparently is or should be in the hands of Mr. Miller.
9 Moreover, even if Patentee accepts Mr. Miller's account of the alleged
10 receipt as correct, the alleged receipt alone, again, does not constitute
11 publication by itself.
12 It is true that the 2003 Miller Declaration does not explain the facts
13 surrounding the receipt of the Copes-Vulcan Brochure by Mr. Miller.
14 Nevertheless, the corroborated receipt of the Copes-Vulcan Brochure before
15 the critical date by Mr. Miller, who is a member of the pertinent public
16 interested in high pressure fluid control valves, speaks for itself and is
17 circumstantial evidence that the brochure was "publicly accessible" to
18 members of the pertinent public before the critical date. Under the
19 preponderance of the evidence standard that applies to proof of facts in the
20 USPTO, this evidence makes it more likely than not that the brochure was
21 "publicly accessible" and, hence, a "printed publication" more than one year
22 before the filing date of the '076 patent under § 102(b), and is sufficient to
23 shift the burden of going forward with the evidence to Patent Owner to show
24 that the brochure was not publicly accessible.
25 This shifting of the burden of production is not an unreasonable or
26 unfair requirement since Patent Owner SBX Corp. acquired Copes-Vulcan
- 15 -
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: September 9, 2013