Appeal 2006-1875 Reexamination Control No. 90/006,272 1 evidence of routine business practice in 1997 that would tend to indirectly 2 show that the brochure was not accessible to the public before the critical 3 date. Cf. Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 4 7 USPQ2d 1057 (Fed. Cir. 1988) ("Intel presented extensive uncontroverted 5 evidence of business practice that was sufficient to prove that Exhibit 5 was 6 widely available and accessible to the interested public before October 14, 7 1979."). Evidence of when the RAVEN control valve went "on sale" might 8 also have been indirect evidence of when the brochure was published. 9 Therefore, Patent Owner has not presented sufficient evidence that the 10 Copes-Vulcan Brochure was not published before the critical date to tip the 11 preponderance of the evidence in its favor. 12 A preponderance of the evidence establishes that the Copes-Vulcan 13 Brochure was "publicly accessible" more than one year before the 14 filing date of the '076 patent so as to constitute a "printed publication" 15 bar under 35 U.S.C. § 102(b) 16 We conclude that the 2003 Miller Declaration establishes by a 17 preponderance of the evidence that the Copes-Vulcan Brochure was 18 disseminated and/or otherwise became publicly accessible before the critical 19 date of June 30, 1997, and constitutes a "printed publication" bar under 20 35 U.S.C. § 102(b). Patent Owner has not provided sufficient evidence to tilt 21 the preponderance of evidence in the other direction. Patent Owner does not 22 deny that the brochure, if it is a "printed publication" prior to the critical date 23 under § 102(b), anticipates all the pending claims. Accordingly, the 24 anticipation rejection of claims 1-41 under § 102(b) is affirmed. - 18 -Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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