## Facts

- John William Bayer filed a patent application in 1972 (a continuation of a 1968 application) directed to transition metal–naphthyridine chemical complexes.
- The Patent and Trademark Office relied on Bayer’s master’s thesis, submitted at the University of Toledo and described in the application as “available in the university library.”
- The examiner treated the thesis as a “printed publication” as of the library’s receipt of the thesis (asserted to be sometime in 1966), placing it more than one year before the critical date (February 27, 1967).
- Based on that premise, the examiner rejected certain claims as anticipated under 35 U.S.C. § 102(b) and rejected other claims under 35 U.S.C. § 103 as patentably indistinct in view of the thesis.
- Bayer argued that library receipt alone was insufficient; to constitute a § 102(b) printed publication, the thesis had to be cataloged and shelved so that it was publicly accessible before the critical date.
- Bayer submitted a declaration from the university’s Chief Catalog Librarian describing the library’s thesis-processing practices (receiving, binding, cataloging, shelving) and attesting to the dates those steps occurred for Bayer’s thesis, showing the thesis had not been cataloged and shelved before the critical date.
- The Board of Appeals affirmed the rejections and adhered on reconsideration; Bayer appealed.

## Issues

1. Whether a graduate thesis becomes a “printed publication” under 35 U.S.C. § 102(b) merely upon receipt by a university library, or only when made publicly accessible (e.g., by cataloging and shelving) before the critical date.
2. Whether the § 102(b) anticipation rejection and the § 103 rejection based solely on the thesis can stand absent proof of public accessibility before the critical date.

## Decision

- The Court of Customs and Patent Appeals reversed the Board of Appeals.
- The court held that the thesis was not a “printed publication” under § 102(b) as of the critical date because it had not been made sufficiently accessible to the public.
- Because the thesis did not qualify as § 102(b) prior art on the record presented, the related § 102(b) and derivative § 103 rejections could not be sustained.

## Legal Principles

- A document qualifies as a “printed publication” under 35 U.S.C. § 102(b) only if it was publicly accessible before the critical date.
- Mere deposit or receipt of a document in a library does not, by itself, establish public accessibility; there must be evidence that interested members of the public, exercising reasonable diligence, could locate it.
- Cataloging, indexing, and shelving practices may be central evidence of whether a library-held document was sufficiently accessible to constitute a “printed publication.”
- When the sole prior-art reference fails to qualify as a § 102(b) printed publication, anticipation rejections based on that reference and obviousness-type rejections that depend entirely on it cannot stand.

## Conclusion

The court held that Bayer’s thesis did not constitute a § 102(b) printed publication absent proof that it was cataloged and shelved (and thus meaningfully accessible) before the critical date, and it reversed the Board’s rejections that relied exclusively on the thesis as prior art.


Application of Bayer, 568 F.2d 1357 (C.C.P.A. 1978)