2120 Prior Art‎ > ‎

2128

2128 "Printed Publications" as Prior Art [R-5]

A REFERENCE IS A "PRINTED PUBLICATION" IF IT IS ACCESSIBLE TO THE PUBLIC

ELECTRONIC PUBLICATIONS AS PRIOR ART

Status as a "Printed Publication"

EPSTEIN


Anticipation is a factual inquiry that we resolve by the preponderance of the evidence of record. E.g., In re Epstein, 32 F.3d 1559, 1564 (Fed. Cir. 1994).

The Examiner also cites In re Epstein, 31 USPQ2d 1817 (Fed. Cir. 1994). (See Ans. 11). In Epstein, our reviewing court determined that the Board did not err in determining that various third-party software products were “in public use or on sale” more than one year before Applicant’s filing date based upon abstracts which indicated when the products were “first installed” or “released” more than one year prior to Applicant’s filing date.
...

Under this approach to establishing anticipation, the multiple references are not separate anticipatory references; rather, it is the single device that anticipates a claim if the multiple references (or other evidence) establish that the single device had all the claimed features and was in public use or was offered for sale “more than one year prior to the date of the application for patent in the United States.” (Id.).

Date of Availability

Extent of Teachings Relied Upon

Internet Usage Policy

EXAMINER NEED NOT PROVE ANYONE ACTUALLY LOOKED AT THE DOCUMENT

2128.01 Level of Public Accessibility Required [R-3]

I.    A THESIS PLACED IN A UNIVERSITY LIBRARY MAY BE PRIOR ART IF SUFFICIENTLY ACCESSIBLE TO THE PUBLIC

“The statutory phrase ‘printed publication’ has been interpreted to give effect to ongoing advances in the technologies of data storage, retrieval, and dissemination.” In re Hall, 781 F.2d 897, 898 (Fed. Cir. 1986) (citation omitted). “Because there are many ways in which a reference may be disseminated to the interested public, ‘public accessibility’ has been called the touchstone in determining whether a reference constitutes a ‘printed publication’ bar under 35 U.S.C. § 102(b).” Id. at 898-99 (citation omitted).

Because there are many ways in which a reference may be disseminated to the interested public, "public accessibility‟ has been called the touchstone in determining whether a reference constitutes a "printed publication‟ bar under 35 U.S.C. § 102(b). . . . The proponent of the publication bar must show that prior to the critical date the reference was sufficiently accessible, at least to the public interested in the art, so that such a one by examining the reference could make the claimed invention without further research or experimentation. In re Hall, 781 F.2d 897, 898-899 (Fed. Cir. 1986).

For example, the Examiner has not demonstrated that the Norman reference was catalogued and shelved in a meaningful way (In re Bayer, 568 F.2d 1357, 1361 (Fed. Cir. 1978); In re Cronyn, 890 F.2d 1158, 1161 (Fed. Cir. 1989)), was actually disseminated without restriction (Massachusetts Institute of Technology v. AB Fortia, 774 F.2d 1104, 1109 (Fed. Cir. 1985)), or was such that “anyone could have had access to the [Norman reference] by the exercise of reasonable diligence” (Northern Telecom, Inc. v. Datapoint Corporation, 908 F.2d 931, 937 (Fed. Cir. 1990); In re Wyer, 655 F.2d 221, 226 (CCPA 1981)).

II.    ORALLY PRESENTED PAPER CAN CONSTITUTE A "PRINTED PUBLICATION" IF WRITTEN COPIES ARE AVAILABLE WITHOUT RESTRICTION

MIT

A reference prepared for a conference is considered a prior art reference if actually disseminated at a conference without restriction. See, e.g., Massachusetts Institute of Technology v. AB Fortia, 774 F.2d 1104, 1109 (Fed. Cir. 1985).

III.    INTERNAL DOCUMENTS INTENDED TO BE CONFIDENTIAL ARE NOT "PRINTED PUBLICATIONS"

>IV.    PUBLICLY DISPLAYED DOCUMENTS CAN CONSTITUTE A "PRINTED PUB-LICATION" EVEN IF THE DURATION OF DISPLAY IS FOR ONLY A FEW DAYS AND THE DOCUMENTS ARE NOT DIS-SEMINATED BY COPIES OR INDEXED IN A LIBRARY OR DATABASE

2128.02 Date Publication Is Available as a Reference

DATE OF ACCESSIBILITY CAN BE SHOWN THROUGH EVIDENCE OF ROUTINE BUSINESS PRACTICES

A JOURNAL ARTICLE OR OTHER PUBLICATION BECOMES AVAILABLE AS PRIOR ART ON DATE OF IT IS RECEIVED BY A MEMBER OF THE PUBLIC

 

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