Interference No. 103,146
unpatentable to Elson in a prior ex parte appeal to this
Board, Barker argues that failure to disclose that this
embodiment was on sale during the prosecution of the involved
Elson application constitutes failure-to-disclose type
inequitable conduct under
37 CFR § 1.56 and renders all claims in the Elson application,
including Elson’s involved claims, unpatentable. See Barker
Brief at 40.
The embodiment said by Barker to have been offered
for sale is illustrated in Figures 5 and 6 of the Elson
involved application. It uses a stretchable latex membrane or
disk to surround the thermistor probe as the probe projects
into the injectate stream.
The alleged on sale activity pointed to by Barker is
a series of field visits made by Eric Shore on December 10-12,
1980. The field visits are described in the Shore memorandum,
BX-16, dated December 16, 1980. We will consider the memo and
Shore’s activities in detail.
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