Appeal No. 96-3022
Application 08/278,012
totality of the circumstances. In re Brigance, 792 F.2d 1103,
1107, 229 USPQ 988, 991 (Fed. Cir. 1986). If the use or sales
activity in question was associated with primarily experimental
procedures conducted during the course of completing the
invention, a 35 U.S.C. § 102(b) bar does not vest. Baker Oil
Tools, Inc. v. Geo Vann, Inc., 828 F.2d 1558, 1563, 4 USPQ2d
1210, 1213 (Fed. Cir. 1987). Determining whether the activity
was primarily for purposes of experimentation or testing requires
consideration of a variety of factors such as the necessity for
the testing, the amount of control retained over the testing, the
extent and length of the testing, whether any payment was made,
whether there was a secrecy obligation, whether progress records
were kept, who conducted the testing, and the degree of
commercial exploitation during the testing. Baker Oil Tools, 828
F.2d at 1564, 4 USPQ2d at 1214.
It is apparent from the statements contained in the § 1.132
declarations that the appellant and his son used the subject
device, at least to some degree, in connection with commercial
activity. Thus, although the record does not indicate that the
device itself was in public use or on sale, this distinction,
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