Bruckelmyer v. Ground Heaters, Inc.

Mark Bruckelmyer (plaintiff) sued Ground Heaters, Inc., and T.H.E. Machine Company (collectively, Ground Heaters) (defendants) in 2002 in federal court for infringement of two patents. The patents disclosed a method of thawing frozen ground to pour concrete. In 1982, over 13 years before the applications were filed for the Bruckelmyer patents, Norman Young submitted a patent application for the patent ultimately issuing as Canadian Patent 1,158,119 (the 119 patent). The 119 patent referenced using the invention to thaw frozen ground. Two figures showing the use of the invention to thaw frozen ground were included in the 119 application, but the figures were canceled during prosecution and not included in the issued 119 patent. However, the figures remained in the patent’s file wrapper. The 119 patent was classified and indexed, but the 119 application was not. The 119 patent did not indicate that the application contained any disclosures regarding using the invention to thaw frozen ground. Ground Heaters filed a counterclaim and motion for summary judgment of patent invalidity, arguing that the 119 application qualified as a printed publication, which required public accessibility. The district court granted summary judgment of invalidity. Bruckelmyer appealed, arguing that a foreign patent application located in a foreign patent office did not qualify as publicly accessible and, therefore, was not a printed publication.