Appeal No. 1999-0194
Application No. 08/436,626
the totality of the circumstances. In re Brigance, 792 F.2d
1103, 1107-08, 229 USPQ 988, 991 (Fed. Cir. 1986). Factors to
be considered include:
the length of the test period; whether any payment
was made for the invention; whether there is any
secrecy obligation on the part of the user; whether
progress records were kept; whether persons other
than the inventor conducted the asserted
experiments; how many tests were conducted; and how
long the test period was in relation to test periods
of similar devices. This list of factors is by no
means all inclusive, but merely serves as a basis
for objective analysis under section 102(b).
In re Brigance, 792 F.2d at 1108, 229 USPQ at 991 (footnotes
omitted).
In the present case, the date of the application is May
8, 1995. Therefore, the critical date one year prior to the
date of the application is May 8, 1994. The Bonstedt and
Nagle declarations relied upon by the examiner clearly
establish that the Conewago Creek and Schuylkill River bridge
projects involved the subject matter of claims 1-14 and 16-27
(B10, B13, N11, N15, N18). Further, these declarations
clearly establish that the Conewago Creek and Schuylkill River
bridge projects involved a sale of the claimed subject matter
some 9 and 6 years, respectively, prior to the critical date
15
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