ANSWER: The correct answer is (C). The internal report was intended to be confidential and therefore is not a “printed publication” under 35 U.S.C. § 102(b). See MPEP § 2128.01, under the heading “Internal Documents Intended To Be Confidential Are Not ‘Printed Publications,” citing In re George, , 2 USPQ2d 1880 (Bd. Pat. App. & Int. 1987) states “Research reports disseminated in-house to only those persons who understood the policy of confidentiality regarding such reports are not printed publications even though the policy was not specifically stated in writing.” Answer (A) is incorrect. An orally presented paper can be a “printed publication” if copies are available without restriction. The paper is a “printed publication” under 35 U.S.C. § 102(b). See MPEP § 2128.01. Answer (B) is incorrect. The thesis is a “printed publication” under 35 U.S.C. § 102(b). See MPEP § 2128.01. Answer (D) is incorrect. An electronic publication disclosed on the Internet is considered to be publicly available as of the date the item was posted. The reference is a “printed publication” under 35 U.S.C. § 102(b). See MPEP § 2128. Answer (E) is incorrect. There is no need to prove that anyone actually looked at a document. The manual is a “printed publication” under 35 U.S.C. § 102(b). See MPEP § 2128.
Q) Printed Publication (10.03.46a)
Test takers report question #46 from the October 2003 (AM) patent bar exam is in the question database.
46. In accordance with the patent law, rules and procedures as related by the MPEP, which of the following is not a “printed publication” under 35 USC 102(b), with respect to a patent application filed June 1, 2002?
(A) A paper that was orally presented at a meeting held May 1, 2001, where the meeting was open to all interested persons and the paper was distributed in written form to six people without restriction.
(B) A doctoral thesis that was indexed, cataloged, and shelved May 1, 2001, in a single, university library.
(C) A research report distributed May 1, 2001, in numerous copies but only internally
within an organization to persons who understood the organization’s unwritten policy of confidentiality regarding such reports.
(D) A reference available only in electronic form on the Internet, which states that it was publicly posted May 1, 2001.
(E) A technical manual that was shelved and cataloged in a public library as of May 1, 2001, where there is no evidence that anyone ever actually looked at the manual.
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So am I correct in understanding the answer explanation, that if the claim had been amended to say or originally stated “the majority of which is balsa wood” instead of just “majority of which is wood” (no mention of balsa) then perhaps, according to the explanation under answer D, the rejection would not have been valid?
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