Appeal No. 96-3022
Application 08/278,012
which has not been raised by the appellant, would not appear to
be of any consequence given the forfeiture principle set forth in
D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d 1144, 219 USPQ
13 (Fed. Cir. 1983) citing Metallizing Eng'g Co. v. Kenyon
Bearing & Auto Parts Co., 153 F.2d 516, 68 USPQ 54 (2d Cir.
1946). Nonetheless, the statements in the declarations
pertaining to (1) the activity engaged in by the appellant and
his son and (2) the relationship between the two indicate that
the activity was primarily for the purpose of experimenting with
and testing the subject device. Indeed, the examiner does not
specifically dispute that the activity was primarily experimental
in nature. Instead, the examiner appears to have focussed on the
commercial aspect of the activity as if it were the sole
dispositive consideration. As indicated above, however, the
commercial aspect is but one factor which must be weighed and
does not per se establish a 35 U.S.C. § 102(b) bar. Baker Oil
Tools, 828 F.2d at 1564, 4 USPQ2d at 1214. Moreover, although
the declarations do indicate that the activity in question did
involve a commercial aspect, they do not support the examiner’s
speculative contention that the appellant and his son profited
financially from the activity.
In light of the foregoing, we shall not sustain the standing
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