Appeal No. 1999-0194
Application No. 08/436,626
than because of any particular concern with the performance of
appellant’s precast diaphragms (N21). The record makes clear
that thereafter the thrust of appellant’s “test” activity was
to develop a design standard that was acceptable to PennDoT
and in concurrence with Federal Highway Administration
standards so that appellant’s precast diaphragms could be
freely substituted for conventional diaphragms without
resorting to CAD procedures. See N23 (“I expect this review
process to end with issuance of a PennDoT standard for use of
precast concrete diaphragms in bridge construction”), N25 (“.
. . I have no current plans to do so [i.e., place the
invention in states other than Pennsylvania], until the
invention has been accepted in the form of a PennDoT
standard,”) and the PennDoT letter of June 2, 1994 from
Director of Design Fred W. Bowser to Nagle, attached as an
exhibit to the Bonstedt declaration. In our view, the real
goal of this sort of “testing” was to gain a competitive
market advantage for appellant’s precast diaphragm. In any
event, the exhibits attached to the Bonstedt declaration
documenting the “test” activity referred to in B17 through B25
19
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