In re Klopfenstein
72 USPQ2d 1117 (Fed. Cir. 2004)
Summary of Holding
Printed Slide Presentation Ruled as Prior Art
Facts
On October 28, 1998, Carol Klopfenstein, John Brent and M. Liu presented a printed slide presentation entitled "Enhancement of Cholesterol-Lowering Activity of Dietary Fibers by Extrusion Processing" at a meeting of the American Association of Cereal Chemists. Additionally, in November 1998, the same slide presentation was presented for a half day at Kansas State University's Agriculture Experiment Station.
Carol Klopfenstein and John Brent applied for a patent on October 30, 2000 directed to methods of preparing foods comprising extruded soy fiber. The patent application (application '950) asserts that feeding mammals foods containing extruded soy fiber may help lower their serum cholesterol levels while raising HDL cholesterol levels.
The Examiner finally rejected, and the Board of Patent Appeals and Interferences upheld, the '950 application as anticipated by the printed slide presentation under 35 U.S.C. §102(b). Carol Klopfenstein and John Brent appeal the Board's ruling to the Federal Circuit.
Rules and Analysis
Under 35 U.S.C. §102(b), a person is not entitled to a patent application if the invention was patented or described in a printed publication in this or a foreign country more than one year prior to the date of the application for patent in the United States.
As there are many ways in which a reference may be disseminated to the interested public, the key inquiry to interpret the phrase "printed publication" under 35 U.S.C. §102(b) is whether or not a reference has been made "publicly accessible." The Court used four factors to determine if the printed slide presentation was sufficiently publicly accessible: (1) length of time the display was exhibited; (2) expertise of the target audience; (3) existence, or lack thereof, of reasonable expectations that the material displayed would not be copied; and (4) simplicity or ease with which the material displayed could have been copied.
In this, the presentation was exhibited for two and a half days to ones of ordinary skill in the art. The material was relatively easy to copy, leaving reasonable expectation that the material displayed would not be copied. As such, the printed slide presentation was a "printed publication" under 35 U.S.C. §102(b) and anticipated the '950 application.