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LEE PHARMACEUTICALS v. KREPS

No. 76-2082.

577 F.2d 610 (1978)

LEE PHARMACEUTICALS, Plaintiff-Appellant, v. Juanita M. KREPS, Secretary of Commerce, et al., Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

June 29, 1978.

Attorney(s) appearing for the Case

Mary Helen Sears (argued), of Irons & Sears, Washington, D. C., for plaintiff-appellant.

Alice Mattice (argued), Washington, D. C., for defendants-appellees.

Before HUFSTEDLER and WRIGHT, Circuit Judges, and SOLOMON, District Judge.

HUFSTEDLER, Circuit Judge:

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...

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