Interference No. 103,146
Thus, the Supreme Court has done away with the “totality of
circumstances test” previously articulated by the Federal
Circuit, in favor of the above-noted two-prong analysis. See
Weatherchem Corp. v. J.L. Clark Inc., 163 F.3d 1326, 1332,
49 USPQ2d 1001, 1006 (Fed. Cir. 1998). Cf. Envirotech Corp.
v. Westech Eng'g, Inc., 904 F.2d 1571, 1574, 15 USPQ2d 1230,
1232 (Fed. Cir. 1990); UMC Elecs. Co. v. United States, 816
F.2d 647, 656, 2 USPQ2d 1465, 1472 (Fed. Cir. 1987), cert.
denied, 484 U.S. 1025 (1988); King Instrument Corp. v. Otari
Corp., 767 F.2d 853, 860, 226 USPQ 402, 406 (Fed. Cir. 1985),
cert. denied, 475 U.S. 1016 (1986).
With respect to the second prong of the Pfaff
analysis, we are in agreement that the latex membrane
embodiment of the closed loop injectate system was ready for
patenting as of
December 1980. We acknowledge that Shore, in his declaration,
states that the invention was not ready for sale, inasmuch as
there was no product to sell, no clinical trials had been
conducted, the device had not achieved regulatory approval for
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