## Facts

- Emil Schlittler and Andreia Uffer filed a U.S. patent application directed to certain amines and a process for preparing them.
- The application claimed the benefit of a Swiss filing date of May 21, 1948 under the foreign-priority statute, making May 21, 1948 the critical date for assessing intervening prior art.
- The Patent Office rejected certain claims based on a single reference: a Nystrom et al. article in the November 1948 issue of the *Journal of the American Chemical Society* (JACS).
- The JACS article contained an internal notation stating the manuscript was “received” on April 30, 1948; the journal issue date was November 1948.
- The examiner and Board of Appeals treated the “received” notation as establishing that the article’s contents were available in the United States before May 21, 1948, and therefore anticipatory.
- On rehearing, the full Board adhered to its affirmance of the rejection; the applicants appealed to the United States Court of Customs and Patent Appeals.

## Issues

1. Whether a journal article’s internal “received” date, without additional proof, establishes that the article was published or publicly accessible in the United States before an applicant’s foreign-priority critical date.
2. Whether the Patent Office may treat such a reference as anticipatory prior art based solely on that “received” notation.

## Decision

- The C.C.P.A. reversed the Board of Appeals.
- The court held that the “received April 30, 1948” notation was insufficient, by itself, to prove the reference was published or publicly accessible in the United States before May 21, 1948.
- Because the Patent Office offered no evidence of actual dissemination or public availability before the critical date, the reference could not be treated as anticipatory prior art on the record presented.

## Legal Principles

- A “printed publication” used as prior art must be shown to have been publicly accessible before the applicant’s critical date.
- An internal editorial date on a manuscript or article (e.g., “received”) is not competent evidence, standing alone, that the contents were publicly accessible as of that date.
- When relying on a publication to reject claims, the Patent Office bears the burden to establish, with evidence, the reference’s effective prior-art date (e.g., printing, distribution, indexing, or other facts showing public availability).

## Conclusion

The court rejected the Patent Office’s inference that a journal’s “received” date establishes a pre–critical date printed publication, holding instead that prior art status requires evidence of actual public accessibility before the applicant’s foreign-priority date.


Application of Schlittler, 234 F.2d 882 (C.C.P.A. 1956)