Patent Law

Natures Remedy case on accessibility of prior art

By Lawrence B. Ebert, Esq.

?Accessibility goes to the issue of whether interested members of the relevant
public could obtain the information if they wanted to.? Constant v. Advanced Micro-
Devices, Inc., 848 F.2d 1560, 1568 (Fed. Cir. 1988). Thus, a reference will be deemed
?publicly accessible? if it:
has 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 and recognize and
comprehend therefrom the essentials of the claimed invention without
need of further research or experimentation.

In re Wyer, 655 F.2d 221, 226 (C.C.P.A. 1981); see Bruckelmyer v. Ground Heaters,
Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006).

Yes, Hall is mentioned -->

In re Hall, 781 F.2d 897, 899-900
(Fed. Cir. 1986) (holding that a single catalogued thesis in a German university library
was sufficiently accessible to the public).

Also-->

See Mass. Inst. of Tech. v. AB Fortia,
774 F.2d 1104, 1109 (Fed. Cir. 1985) (concluding that a paper orally presented at a
scientific meeting was publically accessible where written copies were distributed
?without any restrictions? to those requesting them); Garrett Corp. v. United States, 422
F.2d 874, 878 (Ct. Cl. 1970) (distributing documents ?without restriction on use?
constitutes publication).

And -->

Attorney argument, however,
cannot take the place of record evidence. See In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989).

Full post as published by IPBiz on March 13, 2009 (boomark / email).