Interference No. 103,146
offer for sale was made, however. It is but one factor to be
considered.
Shore candidly admitted under cross-examination that
marketing was an incidental or ancillary purpose to the field
visits. BR1487. Barker also points to the $15 conversation
with Dr. Estafanous and at St. Luke’s. Barker brief at 23,
25. Interestingly enough the $15 comments were probably
solicited by Shore in that he had been tasked to find out if
doctors would pay this amount of additional cost for a closed
loop system. BX-2 at
11588; BR1453, 1454. And the testimony of Shore makes clear
that Dr. Etr would not be obtaining the device as a sold item
but obtaining a sample for evaluation purposes. BR1480. Here
again we find none of these circumstances dispositive of an
offer for sale.
Two important principles from the case law impact
our findings with respect to Edward’s commercial activities.
First, the "on sale" bar of § 102(b) does not arise simply
because the intended customer was participating in development
and testing. Continental Can Co. USA, Inc. v. Monsanto Co.,
41
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