Appeal Number: 2007-0064
Application Number: 09/696,458
Moreover, to establish that a reference is a printed publication the examiner
must show that the reference Ahas been disseminated or otherwise made available
to the extent that persons interested and ordinarily skilled in the subject matter or
art, exercising reasonable diligence, can locate it. In re Wyer, 655 F.2d 221, 226,
210 USPQ 790, 794 (CCPA 1981), quoting I.C.E. Corp. v. Armco Steel Corp., 250
F.Supp. 738, 743, 148 USPQ 537, 540 (SD NY 1966). The examiner argues that
“[i]t is clear that the flyer was clearly intended, and utilized, as part of a mass
mailing to their customers since it promoted its booth at the SEMA Convention in
1999 (as indicated at the bottom of the flyer)” (answer, page 6). The bottom of the
flyer states: “Stop by our Booth at SEMA, to see our new products!”. There is no
statement that the SEMA booth was at a 1999 convention. If Mr. Bergert is correct
that “Available in June” on the flyer refers to June 2000, then the SEMA show
referred to at the bottom of the flyer may be a 2000 show. The examiner has not
shown that the Auto Meter flyer was disseminated or otherwise made available to
anyone prior to the appellant’s invention, let alone being made available to the
extent that persons interested and ordinarily skilled in the subject matter or art,
exercising reasonable diligence, can locate it.
4
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013