Lee Pharmaceuticals v. Juanita M. Kreps, Secretary of Commerce

577 F.2d 610 198 U.S.P.Q. 601 LEE PHARMACEUTICALS, Plaintiff-Appellant, v. Juanita M. KREPS, Secretary of Commerce, et al., Defendants-Appellees. No. 76-2082. United States Court of Appeals, Ninth Circuit. June 29, 1978. Mary Helen Sears (argued), of Irons & Sears, Washington, D. C., for plaintiff-appellant. Alice Mattice (argued), Washington, D. C., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before HUFSTEDLER and WRIGHT, Circuit Judges, and SOLOMON, * District Judge. HUFSTEDLER, Circuit Judge: 1 Lee Pharmaceuticals ("Lee"), a patent applicant, brought this action to compel the Patent Office to produce abandoned patent applications under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1977) and to consider such applications as evidence of prior art in evaluating Lee's claims of patentability, under 35 U.S.C. § 131 (1970). Lee appeals from a judgment dismissing its complaint for failure to state a claim upon which relief could be granted. We affirm, holding that (1) abandoned patent applications are not producible under FOIA because section 122 of the Patent Act ( 35 U.S.C. § 122 (1970)…