Interference No. 103,146
if the purpose of the visits were marketing or to offer a
commercial embodiment for sale, in our view, Shore would have
so stated in the memo. Therefore, we accept Shore’s testimony
that the purpose of the trip was to finalize the design.
Shore expressly states in his declaration that there was no
“offer for sale or effort to
solicit offers [to buy?].” ER8, ¶7. Likewise, he expressly
stated that Edwards received no payment or promise of payment
from hospital personnel. ER8, ¶7.
We find Shore's characterization of the prototype as
crude and not suitable for use as plausible. Barker’s brief
at 43-44 quotes BX-86 to imply that the prototypes were fully
functional, but the part of BX-86 quoted merely states that
the prototypes will be “suitable for demonstration purposes.”
This does not conflict with or contradict Shore’s testimony.
At this remove, far from the time of the field
visits, we doubt that it is possible to determine if Shore
orally asked the doctors and nurses to keep the information
respecting the prototype confidential. Whether
confidentiality was requested is not dispositive of whether an
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