Half-round veneer slicing.

How does one cut wood veneer from a log?  With the half-round method, one slices the former tree into two "flitches", uses "dogs" to attach a flitch to a "staylog", and rotates the flitch on the staylog while a veneer knife slices off long, thin sheets of wood.

You probably already knew that.  But what do you do about the fact that trees — and therefore flitches — taper?  You use dogs of varying heights.  And so two different inventors, who sometimes collaborated, concluded at around the same time.  Each also filed patent applications claiming the same invention but at slightly different times.  Inventor No. 1 filed first.

Whose patent got priority?  The U.S. Patent and Trademark Office’s Board of Appeals and Interferences awarded priority to Inventor No. 2.  But in doing so the Board cited no evidence to support its conclusion that a person of ordinary skill in the flitches-and-dog art would have know how to practice the invention just by looking at two sketchy diagrams that Inventor No. 2 testified he showed to Inventor No. 1.  The Board instead used its own expertise in the area to conclude that Inventor No. 1 derived the invention from Inventor No. 2’s.

The Federal Circuit held that the Board overstepped its bounds in doing so.  The court found no proof of that an ordinarily skillful person would have known from gawking at the diagrams.  And it concluded that the Board couldn’t supply the missing evidence, which Inventor No. 2 had the burden of producing, by relying on its own knowledge of the art.  Brand v. Miller, No. 06-1419 (Fed. Cir. May 14, 2007).

Blawgletter won’t ask how the Board knew so much about veneer-slicing techniques.  But we do agree that Inventor No. 2 cut the evidence a little too thin.

Barry Barnett

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