Appeal No. 1997-4438
Application No. 08/173,431
inquiry. Tone Bros., 28 F.3d at 1198, 31 USPQ2d at 1324.
Appellant has not, however, alleged experimentation, and the
examiner has correctly concluded (Answer, page 14) that the
evidence before us does not suggest such.
When a prima facie case of public use is made by the
examiner, the burden shifts to appellant to come forward with
evidence establishing the opposite. Inasmuch as appellant has
admitted (Specification, page 12, lines 4-6 and 27-28) that
his
invention was exhibited in a trade show, appellant has the
burden of establishing by evidence that this was not a public
use of the claimed invention. Appellant argues (Brief, page
9) that only the results of the invention, rather than the
invention itself, were viewed and that the viewing was not
enabling. For “public use” under 35 U.S.C. § 102(b), no such
enablement requirement is necessary . As indicated supra, the1
totality of the circum-stances test is used to determine
1In re Epstein, 32 F.3d 1559, 1568, 31 USPQ2d 1817, 1823 (Fed. Cir.
1994) (quoting J.A. LaPorte, 787 F.2d at 1583, 229 USPQ at 439).
7
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