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Cancelled Subject Matter May Still Constitute a ‘Printed Publication’April 27, 2006

In Mary Bruckelmyer v. Ground Heaters, Inc. and T.H.E. Machine Company, the Federal Circuit affirmed the district court’s decision granting summary judgment of invalidity of patents-in-suit in favor of Ground Heaters. At issue was whether a Canadian patent application which issued as Canadian patent 1,158,119 (‘the 119 patent’) was a ‘printed publication’ under 35 U.S.C. 102(b), and would thus render obvious Bruckelmyer’s patents-in-suit. On July 20, 1985, Bruckelmyer filed a patent application that issued as the ‘085 patent, naming Bruckelmyer as the inventor. On July 17, 1996, a continuation-in-part application that issued as the ‘301 patent was filed, also naming Bruckelmyer as the inventor. Both patents disclose a method of thawing frozen ground so that a layer of concrete can be laid on top of the ground.On May 17, 1982, thirteen years prior to Bruckelmyer’s patent applications, Norman Young filed an application that issued as the ‘119 patent on December 6, 1983. The ‘119 patent disclosed a portable heating system that places flexible hoses ‘in close proximity to objects of various shapes and configuration which would otherwise be difficult to heat.’ Like the patents-in-suit, the ‘119 patent disclosed a method of heating structures by having preheated liquid flow through flexible hoses. Of note relevant to the appeal, the ‘119 patent omitted certain drawings that were contained in the application as filed.

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