Appeal No. 98-1380
Application 08/786,741
The examiner takes the position that (answer, p. 7):
The substantial payments for the construction
of the roll former apparatus prior to the
critical date presumes [sic: demonstrates?]
that both parties were completely knowledge-
able that the roll former apparatus would
work for its intended purpose.
However, we do not consider that this inference can be drawn,
when one considers the statement of Mr. Bradbury, supra, that the
purchase order was an agreement to purchase a roll former which
was “to be subsequently designed and manufactured.” The machine
which was the subject of the purchase order was not an “off the
shelf” item, and while MBCI obviously was confident that Bradbury
could design a machine which would work, this is not to say that
it was known that it would work without further testing. As Mr.
Bradbury states (D. ¶5), after the machine was assembled (which
was not until after the critical date (S.D. ¶6)), it was tested
at Bradbury “to determine whether it would operate,” beginning
about March 1994. Mr. Bradbury also refers to documents 000200
to 000252, which describe some of the problems discovered in the
testing at Bradbury and MBCI (D. ¶6).
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