Appeal No. 1997-4438
Application No. 08/173,431
date of the subject application. The examiner states (Answer,
pages 4 and 5) that the Seybold, Boisseau, and Hyperbole
publications disclose public use of appellant’s claimed
invention prior to the critical
date of December 27, 1992. Appellant argues (Brief, page 8)
that the examiner has not developed “an ‘on-sale’ argument.”
Even if the examiner has not developed an “argument” for an
on-sale bar, the examiner has most certainly developed an
“argument” for public use of the claimed invention. Appellant
correctly concludes (Brief, page 9), however, that
“[r]esolution of this issue requires an analysis of the
totality of the circumstances in light of the policies behind
the public use bar. See Tone Bros. v. Sysco Corp., 31 USPQ2d
1321, 1324 (CAFC 1994).”
According to the appellant (Brief, page 9), “the rejected
claims were in public use in the sense of being used for a
business rather than a private purpose more than a year prior
to filing, because the uses were made for the purposes of
gaining publicity for the inventor and his company.”
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