It is clear that they at least "pointed the way (a user of the invention) must travel." Hamilton Laboratories v. Massengill, 111 F.2d 584, 587 (6th Cir. 1940). They described the invention with sufficient particularity to enable one skilled in the art to reproduce it without having to resort to the patent.
There can be no doubt but that the article in the magazine "Electrical Manufacturing," in December 1949 disclosed square hysteresis loops and was a printed publication in this Country, within the plain terms of 35 U.S.C. § 102(b). Hamilton Laboratories v. Massengill (6 Cir., 1940), 111 F.2d 584, cert. den. 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444, is squarely in point for the proposition that Papian's thesis also, even though typewritten and lodged in the Library of a college, is a printed publication within the meaning of 35 U.S.C. § 102(b). We do not have involved here, as in the line of cases illustrated by Cee-Bee Chemical Co. v. Delco Chemicals, Inc. (9 Cir., 1958), 263 F.2d 150, the question of what the prior art was and what the patent did to improve it.
The solicitor reiterates a second point raised in the examiner's Answer, although in a different context, arguing that "intent that the fruits of research be available to the public is determinative of publication under the statute * * *." Hamilton Laboratories, Inc. v. Massengill, 111 F.2d 584, 585, 45 USPQ 594, 595 (C.A. 6), cert. denied, 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444 (1940). The solicitor's contention is that at the time appellant applied for a patent he no longer had any consideration to offer because the invention was already possessed by the public as partial consideration for the appellant's degree.
His conclusion that the microfilm copy of the Lorenze application was not misfiled supports his finding that it was available to persons interested and could be located by persons ordinarily skilled in the subject matter with the exercise of reasonable diligence. In holding a thesis written by a patentee and filed in a college library available to students and to other libraries having exchange arrangement with the college to be in the "prior art," the court in Hamilton Laboratories v. Massengill, 111 F.2d 584, at 585 (6th Cir. 1940) found that the thesis constituted a publication within the terms of the statute. Upon the basis of the record before us, we are unable to state that the finding of the trial court that the Lorenze application was a printed publication within the meaning of Section 102(a) is "clearly erroneous."
The report was unclassified and unrestricted in its use. While distribution to government agencies and personnel alone may not constitute publication (Ex parte Suozzi, 125 USPQ 445 (P.O.Bd.App. 1959)), distribution to commercial companies without restriction on use clearly does. Also pertinent is the fact that after 1950, the report was made available for dissemination in the United States through the Defense Department to government contractors who were advised of its availability and could obtain copies upon request at no cost. Coupled with distribution in Great Britain, evidence of availability in the United States to an interested segment of the public shows intent to make the contents of the report freely accessible. In re Tenney, supra; Hamilton Laboratories, Inc. v. Massengill, 111 F.2d 584 (6th Cir. 1940), cert. denied, 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444. See also T.L. Crisman, In-House Publications — Can They Endanger Rights in Technical Information? 49 J.PAT. OFF.SOC'Y 549 (1967).
es but also read papers there. See, e.g., defendant's exhibit (hereafter DX) No. 44, the Abstracts of Communications at the First International Congress on Vacuum Technology at Namur, Belgium, June 10-13, 1958. Fifteen papers read at the Congress were given by Americans, several of these papers were in the same subject classification as that of Stohr and Briola describing deep welds. By way of contrast, earlier cases have held the following to be "printed publications" containing crucial prior art applied to determining the validity of American patents: a glass manufacturer's catalogues in Imperial Glass Co. v. A.H. Heisey Co., 294 F. 267 (6th Cir. 1923) (this case also held that it was no longer necessary to show full description in a "public work" under the Act of 1836); a printed catalogue of a German manufacturer written in French in Jockmus v. Leviton, 28 F.2d 812, 813 (2d Cir. 1928) (opinion by Judge Learned Hand); a thesis available only in the Iowa State University library in Hamilton Laboratories v. Massengill, 111 F.2d 584 (6th Cir. 1940); a typewritten thesis available only at a particular library in Gulliksen v. Halburg, 75 U.S.P.Q. 252 (Pat.Off.Bd.App. 1937); and an unpublished thesis containing some handwritten material available only at a particular library and only with prior permission in Ex parte Hershberger, 96 U.S.P.Q. 54 (Pat.Off.Bd.App. 1952). We agree with Judge Hand in Jockmus that a more widely circulated printed item is clearly to be preferred as a printed publication evidencing prior art than a thesis which is merely on deposit in some library and which has not been otherwise published.
Furthermore, it is sound law, in our opinion, that any reference to a disclosure which is available to the public is permissible. The Hamilton Laboratories, Inc. v. Massengill, 6 Cir., 1940, 111 F.2d 584, certiorari denied 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444. Counsel for appellant in their brief stated that the abandoned application was not open to the public.
Section 102, Title 35 U.S.C. Related questions have been decided in the following cases: Fessenden v. Wilson, 48 F.2d 422, 19 CCPA 1048, cert. den., 284 U.S. 640, 52 S.Ct. 21, 76 L.Ed. 544; Application of Tenney, 254 F.2d 619, 45 CCPA 894: Hamilton Laboratories v. Massengill, 111 F.2d 584, C.A.6, cert. den., 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444; White Cap Co. v. Owens-Illinois Glass Co., 203 F.2d 694, C.A.6, cert. den., 346 U.S. 876, 74 S.Ct. 128, 98 L.Ed. 384; Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651. However, we need not consider the question of constructive or presumptive knowledge, since it appears from the evidence that Mr. Peterson, the inventor, had actual knowledge of these claims at the time he filed the application for patent No. 4.
1952); Gulliksen v. Halberg, 75 U.S.P.Q. 252 (Bd.Appls. 1937); Hamilton Laboratories v. Massengill, 6 Cir., 1940, 111 F.2d 584. It would seem that based upon pure logic alone, the foregoing means of accessibility to the public would be equally effective in vitiating the consideration necessary to support the patent grant as would be "printed" publications.
Furthermore, it is sound law, in our opinion, that any reference to a disclosure which is available to the public is permissible. The Hamilton Laboratories, Inc. v. Massengill, 6 Cir., 1940, 111 F.2d 584, certiorari denied 311 U.S. 688, 61 S.Ct. 65, 85 L.Ed. 444. Counsel for appellant in their brief stated that the abandoned application was not open to the public.