Interference No. 102,668
invention was sufficiently tested at that time to
demonstrate that the device worked for its intended
purpose. The opinion is based on the transmit
response data obtained from the prototype design
shown in that memo. In fact, the highly favorable
performance data obtained from that test as reported
in the attached memorandum resulted in the decision
to continue working on this particular design.
Subsequent tests of Mr. Cavanagh's design repeated
the excellent performance presented in the September
16th memorandum. This design is now considered to
be an important part of the firm's product line.
Ibid.
The contention that this testimony demonstrates the success of
the test results shown in Exhibit C is unpersuasive for two
reasons. The first is that neither Moore nor any other
witness explained the test data in either exhibit or explained
why the test data in these two exhibits are comparable.
Second, Moore failed to explain why the test data in Exhibit G
persuade him that the tests described therein were successful.
Even assuming for the sake of argument that the test
results in Exhibit C are sufficient to establish successful
operation of the device Packard saw tested, Cavanagh's
evidence is still deficient for failing to demonstrate that
the success of those tests was recognized and appreciated
prior to McMahon's November 15, 1988, filing date. Estee
Lauder, 129 F.3d at 594, 44 USPQ2d at 1614-15. While Packard
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