Appeal No. 1998-1898
Application 08/497,721
the technical trial were not charged for their participation
(Exhibit A; Exhibit B, p. 1; Exhibit C, p. 3; Declaration,
para. 11). Thus, we fail to see how there has been a sale
or offer to sell during the trial period. None of the trial
participants were offered special treatment when the final
version of the service was offered to the public (Exhibit B,
p. 3; Declaration, para. 21). This indicates to us that
there was no marketing motive to the test, i.e., that there
was no intent to gain a market advantage by gathering
customers before actual selling of the services.
Participation was limited to a trial group of 40 persons
(Declaration, para. 9) as compared to an estimated 70,000
potential customers (Declaration, para. 22). Thus, there
was no attempt to use the trial as a market trial to judge
consumer demand. The draft letter regarding PERSONAL ACCESS
SERVICE [PAS]-TECHNICAL TRIAL LETTER OF UNDERSTANDING
between participants and U S WEST Communications, Inc.
(USWCI) indicates (Exhibit B, p. 2): "USWCI will provide
PAS to Customer with the intent of testing and evaluating
the technical feasibility, technology, operational
effectiveness of PAS prior to placing PAS in a Market Trial
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