NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC., decided September 13, 2018, claim interpretation and publication

U.S. Patent No. 8,714,977 is directed to dental implants with a frustoconical shape where a diameter of an apical end is larger than a diameter of a coronal end (pages 2-3).  The prior art is a catalog, which was publicly accessible by being available as evidenced by a visitor at a conference having saved a copy and the date on the catalog (pages 14-17).  Corroboration is provided by multiple witnesses testifying to the same thing and the actual copy of the catalog as saved (pages 17-21).  The claim recites a region “having a frustoconical shape,” so other shapes may be included in the region (pages 21-23).  The specification shows both full and partial embodiments (pages 23-24). 

Hindsight: A document that appears to be publicly available is likely to be found as publicly available.  It may be best to document evidence of not being publicly available if aware of the document in drafting or prosecution.  “Having” may be found to be open ended, so use more definitive language to indicating the full shape (e.g., “entire region having”).