Appeal 2006-1875
Reexamination Control No. 90/006,272
1 (see Rule 132 declarations of co-inventors Hemme and Shea noted in Fact 8)
2 and, thus, Patent Owner presumably had access to Copes-Vulcan records
3 relating to the printing and distribution of the Copes-Vulcan RAVEN
4 Brochure and to Copes-Vulcan personnel who may have knowledge of the
5 circumstances of printing and distribution. Patent Owner is in the best
6 position to investigate and provide evidence that Mr. Miller's receipt of the
7 brochure was not part of a public dissemination of the brochure even if it
8 cannot account for how Mr. Miller received his copy. The USPTO should not
9 have to prove how Mr. Miller came into possession of the brochure or search
10 for other interested persons who received copies of the brochure when there is
11 circumstantial evidence that the brochure was published and Patent Owner
12 has access to the information to disprove publication.
13 In the absence of any evidence to the contrary, Mr. Miller's testimony
14 that he received the Copes-Vulcan Brochure before the critical date is
15 sufficient to establish by a preponderance of the evidence that the brochure
16 was "publicly accessible" and to shift the burden of going forward with the
17 evidence to the Patent Owner.
18 Has the Patent Owner submitted sufficient evidence indicating
19 that the brochure was not publicly accessible before the critical date
20 to tip the preponderance of the evidence in its favor?
21 The only information provided by the Patent Owner about the
22 Copes-Vulcan Brochure is the following statement in the Information
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