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Brand v. Miller

United States Court of Appeals for the Federal Circuit

May 14, 2007, Decided

2006-1419

Opinion

 [***1706]  [*864]  DYK, Circuit Judge.

Appellants Robert D. Brand, Capital Machine Co., Inc. and Indiana Forge, LLC ("Brand") appeal from the judgment of the Board of Patent Appeals and Interferences ("Board") of the U.S. Patent and Trademark Office ("PTO") in Interference No. 105,215, entering judgment for appellees Thomas A. Miller, Darrel C. Pinkston, and Miller Veneers, Inc. ("Miller") on the issue of priority. The Board concluded that Brand derived the subject matter of the single count from Miller. We hold that the Board impermissibly relied on its own expertise in determining the question of derivation and that the Board's conclusion is not supported by substantial record evidence. We therefore reverse and remand [**2]  for further proceedings consistent with this opinion.

BACKGROUND

The invention here relates to methods of cutting veneer from logs of wood. Typically logs are cut lengthwise into a pair of "flitches," which are then mounted onto the rotating "staylog" of a veneer cutting machine. The flitch is held in place on the staylog by clamping "dogs." The veneer-cutting knife then cuts off slices of veneer from the flitch as it rotates on the staylog.

Because logs are typically thicker at their base than at their end, traditionally the butt-ends of the resulting tapered flitches were cut off in order to make them more uniform in cross-section from end to end. The ends that had been cut off were then discarded. The invention at issue allows a tapered flitch to be mounted on a staylog such that the flitch's veneer-producing face (the uppermost surface region of 16 in the diagram below from U.S. Patent No. 5,865,232 ("'232 patent")) is parallel to the veneer-cutting knife. This results in more efficient use of the flitches. [*865]  

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487 F.3d 862 *; 2007 U.S. App. LEXIS 11258 **; 82 U.S.P.Q.2D (BNA) 1705 ***

ROBERT D. BRAND, CAPITAL MACHINE CO., INC., and INDIANA FORGE, LLC, Appellants, v. THOMAS A. MILLER, DARREL C. PINKSTON, and MILLER VENEERS, INC., Appellees.

Subsequent History: Rehearing denied by Brand v. Miller, 2007 U.S. App. LEXIS 14495 (Fed. Cir., June 8, 2007)

US Supreme Court certiorari denied by Miller v. Brand, 552 U.S. 1038, 128 S. Ct. 650, 169 L. Ed. 2d 508, 2007 U.S. LEXIS 12575 (U.S., Nov. 26, 2007)

Disposition: REVERSED AND REMANDED.

CORE TERMS

flitch, dogs, tapered, invention, veneer, depicted, proceedings, drawing, staylog, derivation, bugle-headed, contested, skilled, expertise, Patent, record evidence, machine, knife, screw, adjudications, regulations, cutting, slicing, cases

Administrative Law, Formal Adjudicatory Procedure, Impartial Decisionmaker, Ex Parte Contacts, Hearings, Right to Hearing, Statutory Rights, Patent Law, US Patent & Trademark Office Proceedings, Appeals, Judicial Review, Standards of Review, Substantial Evidence, Administrative Record, General Overview, Invention Date & Priority, Conception Date, Reduction to Practice