Early last month, I blogged a bit about the Federal Circuit’s decision in an interesting “printed publication” case, Bruckelmyer v. Ground Heaters, Inc. Those posts are here, here, and here.

Today, the Federal Circuit denied the en banc rehearing petition in the case. Judge Newman, joined by Judge Linn (the dissenter at the panel stage), offers a spirited dissent from the denial of en banc review in the case.

Here’s how Judge Newman summarizes the facts in the case, which, she concludes, don’t make for an invalidating “printed publication”:

The facts are not in dispute. The ‘085 and ‘301 patents were held invalid because of the existence of two drawings that were stored in the unpublished archive of an unrelated Canadian patent application by a different inventor. The drawings were cancelled from the Canadian application before the patent was granted, and are not referred to in the published Canadian patent. It is undisputed that these cancelled drawings are not available in any database or any library, and that no index, no catalog, no abstract suggests their existence or their content. It is not contested that the only way to obtain these drawings (although their existence was unknown) is to personally go to the Canadian Patent Office in Hull, Quebec, and ask to examine the file wrapper (the prosecution history) of this particular patent, which is entitled “Portable Construction Heating System”. This is not the method for heating frozen ground in preparation for pouring concrete, which is the subject of the patent in suit. The only lead to this particular Canadian prosecution record, we are told, is to observe that the broad recitation in the Canadian patent that “other typical uses [of the invention] are . . . thawing frozen ground,” and then to travel to Quebec to examine the file wrapper to see if it might contain information that was deleted from the Canadian application before issuance. This excised and unpublished and unreferenced material is not a “printed publication,” no matter how generously that concept is defined. This court improperly relies on it to invalidate the United States Patents here at issue.

UPDATE: Dennis Crouch, at Patently-O, writes about today’s decision.