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.
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