3/23/11 : Homework based on "In Re Hall" (kyergler)

Printed Publication Homework

In re Carol F. KLOPFENSTEIN (2004)

• Assignment: Create a wiki page with a one-paragraph description of the facts of the case and the holding. Be sure to include which court it was.

In the United States Court of Appeals, Federal Circuit, inventors appealed against a rejection of the Patent and Trademark Office for their invention of an animal-feeding method that helps lower their serum cholesterol levels while raising HDL cholesterol levels. The PTO originally rejected the application because it had "already been described in a printed publication more than one year before the date of the patent application" and this constitutes the bar under 35 U.S.C. 102(b). The CAFC affirmed this.

The Printed Publication

In October of 1998, a 14-slide presentation inclusive of all claims of the above patent application was made at a meeting of the "American Association of Cereal Chemists (AACC)" which were printed and posted on a posterboard and displayed continuously for 2 and a half days at the AACC meeting. The next month (November), the same slide presentation was put on display at an Agriculture Experiment Station at Kansas State University for less than a day. Neither presentation included a no-note-taking disclaimer; however, no copies of the presentation were distributed at the presentations, nor was it ever catalogued or indexed at any library or database.

Discussion

The question at hand is whether the poster display and presentations count as a "printed publication" according to law. Recalling "In re Hall," "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 CAFC considered the following factors:

• length of time that the display was exhibited
• expertise of the target audience
• existence of the expectation that the material would or would not be copied
• simplicity or ease with which one would copy the material

Since the presentation was displayed for an extended period of time to members of the public with ordinary skill in the art, and since the public was not precluded from taking notes or photographs, and since attaining notes and photos would have been fairly simple, the presentation is valid as a "printed publication" under 35 U.S.C. 102(b); thus, the PTO's rejection is affirmed.