Public Use Evidence Required: Aspex Eyewear v. Concepts in Optics

Aspex Eyewear v. Concepts in Optics (Fed. Cir. August 12, 2004) (not citable as precedent).

Aspex sued Concepts for infringement of its patented technology that covers a magnetically attachable auxillary lens for eyeglasses. (U.S. Patent No. RE 37,545 E). The district court granted summary judgment for the defendant based on a finding of invalidity under 35 USC 102 — finding that another person had invented the claimed eyeglasses before the critical date.

On appeal, the Appellate Panel reversed and remanded for two primary reasons:

1) drawings relied upon by the district court were not “printed publications” because there was no evidence of public availability; and
2) the testimony of prior public use (or “known … by others”) was not incontestable on summary judgment.