In Re Ellis v. Eichman, 864 F.2d 150 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 864 F.2d 150 (Fed. Cir. 1988) Nov. 22, 1988

Before MARKEY, Chief Judge, RICH and EDWARD S. SMITH, Circuit Judges.

MARKEY, Chief Judge.


Ellis V. Eichman (Eichman) appeals from a decision of the Board of Patent Appeals and Interferences (Board) affirming a final rejection of claims in a reexamination of United States Patent Number 3,579,939 ('939). We affirm.


The 1967 and 1968 Cupples brochures were printed publications under section 102. The evidence of: (1) distribution to district sales offices and distributors without restriction on further dissemination; and (2) publication in the Sweet's catalog, establishes that the brochures were accessible to the interested public. In re Hall, 781 F.2d 897, 898-99, 228 USPQ 453, 455 (Fed. Cir. 1986). Eichman's arguments on sufficiency of the evidence and weight to be accorded to specific evidentiary matter are unpersuasive of error and inappropriate on appeal in this case. Fromson v. Western Litho Plate and Supply Co., 853 F.2d 1568, 1570, 7 USPQ2d 1606, 1608 (Fed. Cir. 1988).

The Board's finding that the schematic representations of the structure along with statements in the brochure copy were enabling has not been shown to be clearly erroneous. Thus the Board's determination that the claimed invention of the '939 patent would have been obvious in view of the Cupples brochure and the Eichman '491 and Lindelow patents must stand.