Appeal No. 1999-0194
Application No. 08/436,626
not determinative. United States Envtl. Prods. Inc., v.
Westall, 911 F.2d 713, 717, 15 USPQ2d 1898, 1902 (Fed. Cir.
1990).
Upon analysis of the totality of the circumstances, we
conclude from the combination of factors discussed above that
the invention of claims 1-14 and 16-27 was in public use and
on sale in this country prior to the critical date and that
appellant did not exercise sufficient control over the claimed
device during this period to negate this public use and sale.
Accordingly, we shall sustain the standing rejection of claims
1-5, 8-14, 16-22 and 25-27 based on the activity involved in
the construction and use of the Conewago Creek bridge, and the
standing rejection of claims 1-14 and 16-27 based on the
activity involved in the construction and use of the
Schuylkill River bridge.
Rejections (4) and (5)
In rejecting claim 15 under 35 U.S.C. § 103, the examiner
concedes that the subject matter in public use and/or on sale
does not include the pliable material between the diaphragm
and I-beam flange as called for in the claim. The examiner
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