In Re Klopfenstein

380 F.3d 1345 (2004)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Ps applied for a patent on October 30, 2000. Their application discloses methods of preparing foods comprising extruded soy cotyledon fiber (SCF). The application asserts that feeding mammals foods containing extruded SCF may help lower their serum cholesterol levels while raising HDL cholesterol levels. The fact that extrusion reduces cholesterol levels was already known by those of ordinary skill in the art that worked with SCF. What was not known at the time was that double extrusion increases this effect and yielded even stronger results. In October 1998, Ps presented a printed slide presentation at a meeting of the American Association of Cereal Chemists (AACC). This Liu presentation was printed and pasted onto poster boards. It was displayed continuously for two and a half days at the AACC meeting. In November, the same slide presentation was put on display for a day at an Agriculture Experiment Station (AES) at Kansas State University. The presentations disclosed every limitation of the invention disclosed in the patent application. There were no disclaimers or notices to the intended audience prohibiting note-taking or copying of the presentation. No copies of the presentation were disseminated and the presentation was never cataloged or indexed in any library or database. On October 24, 2001, P's application was rejected by the PTO examiner because the claims had been disclosed one year before the application had been filed under §102(b). Ps appealed. Ps argued that the lack of distribution and lack of evidence of copying precluded the Liu reference from being considered a 'printed publication.' Ps claimed it was not 'printed publication' because it was not cataloged or indexed in any library or database. The board affirmed the PTO examiner in that the full invention was made publicly accessible to those of ordinary skill in the art by the Liu reference and that this introduction into the public domain of disclosed material via printed display represented a 'printed publication' under §102(b). Ps appealed.