Appeal No. 1998-1898
Application 08/497,721
Positioners, Inc., 724 F.2d 965, 971, 220 USPQ 577, 582
(Fed. Cir. 1984). The draft letter of understanding
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 and/or an
offering into the market place." This clearly indicates the
intended experimental nature of the technical trial. The
purpose was to evaluate the hardware, software, and design
of components in a live network environment (Declaration,
paras. 7 and 8). Because of the nature of the invention,
the testing had to be conducted under the supervision and
control of the inventors or the assignee. The participants
all signed non-disclosure agreements (Declaration,
para. 10); we note also that the bottoms of the pages of
Exhibit C state that it is not for use or disclosure outside
of U S WEST. The use of non-U S WEST personnel in the
technical trial (the EXTERNAL CUSTOMERS noted in Exhibit C)
does not void an experimental use. In summary, the evidence
indicates that the purpose of the technical trial was
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