Appeal No. 1998-1898
Application 08/497,721
and/or an offering into the market place." This indicates
that an offer for sale would come at some time in the
future, after the technical trial. The letter by attorney
Timothy R. Schulte dated June 9, 1995, (Exhibit E) states:
"This ['Find Me'] service was market trialed starting
July 5, 1994. Therefore, please file this application prior
to July 5." (Emphasis omitted.) Also, Mr. Catellier's
Declaration states that "market testing started with a
market trial in Seattle and Phoenix on July 5, 1994"
(Declaration, para. 19). This indicates that
commercialization began on July 5, 1994, after the critical
date. In summary, the evidence indicates that the claimed
subject matter was not "on sale" prior to the critical date.
Appellants have introduced persuasive evidence that the
purpose of the technical trial prior to the critical date
was experimental. "The use of an invention by the inventor
himself, or of any other person under his direction, by way
of experiment, and in order to bring the invention to
perfection, has never been regarded as [a public] use."
City of Elizabeth v. American Nicholson Pavement Co.,
97 U.S. 126, 134 (1877); T.P. Lab., Inc. v. Prof'l
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