Appeal No. 1996-0910
Application 08/118,368
Moreover, even if it is assumed for the sake of argument
that the transaction between Boeing and Ingersoll did involve
a sale of the invention before the critical date, the
appellants’ 37 CFR § 1.132 declarations constitute convincing
evidence that such sale was merely a precursory event
necessary to carry out experimentation to determine whether
the invention would work for its intended purpose. The
examiner’s contention that “the inventors had knowledge that
these devices would work for their intended purpose” (answer,
pages 4 and 5) is based on a statement in the Walter
declaration taken out of context and has been squarely refuted
by the Kline declaration. Thus, even if the transaction
between Boeing and Ingersoll did constitute a sale of
the invention, the evidence of record shows that the
transaction took place in the context of experimental use and
thus does not constitute on sale activity within the meaning
of 35 U.S.C. § 102(b).
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