Homework 3/23 (John Gallagher)

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Bruckelmyer v. Ground Heaters, Inc. (concerning Prior Publication)

In this case, Bruckelmyer v. Ground Heaters, Inc (445 F.3d 1374), the U.S. Court of Appeals for the Federal Circuit ruled that a canceled patent application constituted a prior publication as far as section 102 is concerned. In this case Bruckelmyer patented a process of warming frozen ground in order to allow concrete to be poured by using heated liquid in hoses placed along the concrete form. A Canadian patent issued 13 years earlier discribed a similar method of heating structures by pumping preheated liquid through flexible hoses. In the application for the Canadian patent, one of the typical uses was listed as 'thawing frozen ground' in order to pour concrete. The patent application also included two figures disclosing the setup of such a system. These figures were removed in the issued patent, but the figures remained in the patent's file wrapper. The court ruled that they these figures constituted a prior publication even though they were not themselves indexed, becuase they were part of the file wrapper of a patent which was indexed, and thus could have been found by a person familiar with the field.