Appeal No. 2002-1644 Page 5
Application No. 08/602,498
explains (id., paragraph 7), “[a]lthough this product performed satisfactorily in
laboratory tests, I did not know how it would perform in actual use on dairy
animals. As a result, a quantity of DX-206 was provided to Dr. Gardner on
January 31, 1995 for field testing by his clients in their herds.” Dee emphasizes
(id., paragraph 8), “[a]t the time it was sent to Dr. Gardner, the DX-206
formulation was not a commercial product. It had undergone no field testing,
and had not been subjected to protocol testing using control animals to
determine its efficacy in a more quantitative way.” In addition, Dee declares (id.,
paragraph 10):
The DX-206 formulation was changed based on the results of Dr.
Gardner’s field testing. For example, in October 1995, based on
complaints from some of Dr. Gardner’s clients that DX-206 did not
work well in teat dip sprayers, more water was added to the
formulation to make the product easier to spray. Wintergreen was
also added at this time to improve the odor of the product.
The Gardner Declaration confirms the statements made by Dee.
According to Gardner (id., paragraph 8), “[a]lthough DX-206 had performed well
in laboratory tests, such performance was not indicative of how the product
would perform in the field, under extreme conditions and with actual dairy
animals.” In addition Gardner declares (id., paragraph 16):
Before DX-206 was field tested by certain of my clients under my
supervision, I did not know whether it would work for its intended
purpose. In fact, although many of my clients were quite satisfied
with the DX-206 formulation, others … decided not to use DX-206
based on their experience in the field test.
Gardner also declares (id., pagaraph 9), “varying amounts of DX-206 [were sold]
to my herd health clients, asking them to try the product for test purposes.”
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