Appeal No. 1999-0194
Application No. 08/436,626
(B12, B15, N12, N19). In addition, the declarations show that
the claimed subject matter was used by the public long before
the critical date, although the general public may not have
been aware of this fact because of the nature of the invention
(B12, B15). The above is clearly supported by objective
evidence in the record, and has not been disputed by
appellant. While we appreciate that durability in an outside
environment is inherent in the nature of the present invention
and that, accordingly, a certain amount of “real world”
testing may have been required, appellant has not, in our
view, shown that the examiner erred in finding that the
claimed invention is barred by 35 U.S.C. § 102(b). In
particular, appellant’s contention that the Conewago Creek
“test” will not be completed for at least another 64 years
(N13; brief, page 10) and that the Schuylkill River “test”
will not be completed for at least another 67 years (N20;
brief, page 15), and the inference to be drawn therefrom that
such ongoing activities would constitute an experimental use
negating application of the public use or on sale bar of §
102(b) for the duration of said “test,” is simply
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