Appeal No. 1997-2021
Application No. 08/500,231
original opinion regarding the declarations of Mr. Flom and
Goman. Mr. Flom's declaration of August 2, 1989, indicates
that he saw the prototype booth operating satisfactory during
the month of September 1987, but this declaration contains no
statement of confidentiality and no statement as to where the
booth was located when it was seen by the declarant. The
subsequently filed declaration filed in August of 1995 from
Mr. Flom, although it includes a statement of confidentiality,
does
not indicate in what year he observed the booth in operation
at the Commercial Craft facility. Because this is a
subsequently filed declaration, we do not have the certainty
we require that the booth was seen to be operated after the
critical date of March 22, 1987. The observations by Mr. Flom
past the critical date are not probative of the issue before
us.
A similar conclusion can be reached with the declarations
from Mr. Goman. His July 31, 1987, declaration indicates that
he saw the prototype video booth operating satisfactory during
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