In a patent application dispute involving tampon design, Board of Patent Appeals and Interferences judgment is reversed where: 1) plaintiff's appeal is timely; 2) the Board's rejection of claim 1 of the patent as anticipated, because another unexamined application discloses a tampon with the characteristics claimed by plaintiff, lacks substantial evidentiary support.
Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences.
Decided: July 31, 2009
Before MICHEL, Chief Judge, RADER, and DYK, Circuit Judges.
Opinion by Chief Judge MICHEL.
Circuit Judge DYK dissents.
For Respondent: Christina J. Hieber, United States Patent and Trademark Office, Alexandria, Virginia.