Appeal No. 1996-0910
Application 08/118,368
fabricator and pays the fabricator for its services in
fabricating a few sample products” (182 F.3d at 891, 51 USPQ2d
at 1473). Also of interest is M & R Marking Sys., Inc. v. Top
Stamp, Inc., 926 F. Supp. 466 (D.N.J. 1996) wherein the
district court declined to apply the on-sale bar to a
transaction between an inventor’s employer and a manufacturer
paid by the employer to make the invention for it. Although
the court in Brasseler took notice of the M & R Marking case
and observed that “we have no obligation to follow the
district court’s reasoning” (182 F.3d at 891, 51 USPQ2d at
1473), it went on to distinguish the transaction in M & R
Marking from the on-sale activity before it.
In light of the foregoing, we are of the opinion that the
facts of record relating to the transaction between Boeing and
Ingersoll are not sufficient to establish that the appellants’
invention was on sale or sold before the critical date.
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