Bruckelmyer v. Ground Heaters (Fed. Cir. 2006).
Bruckelmyer has two patents on methods of thawing frozen ground so that a layer of concrete can be laid on top of the ground. The trial court found Bruckelmyer's patents obviated by a Canadian patent application and decided the case on summary judgment.
Interestingly, the Canadian patent application included two important figures that were cancelled during prosecution. Those figures were reportedly required for a finding of obviousness.
On appeal, Bruckelmyer argued that the unpublished Canadian patent application was not a “printed publication” under 35 U.S.C. Section 102(b) and thus, was not prior art.
The CAFC found that the original application was “publicly accessible,” and thus a prior art “printed publication” because the Canadian prosecution file was open to the public more than a year before Bruckelmyer filed his application.
A given reference is "publicly accessible"
upon a satisfactory showing that such document has been disseminated . . . to the extent that persons interested and ordinarily skilled in the subject matter . . . 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 (CCPA 1981).
Here, the Court found that this particular application could be located because the related patent discussed a solution for the same problem addressed by Bruckelmyer's patents.
Thus, the application was found to be prior art even though there was no evidence that it was actually disseminated.