Appeal No. 1998-1898
Application 08/497,721
experimental and, thus, the claimed subject matter was not
"in public use" prior to the critical date.
The Examiner notes that Exhibit A discloses that as of
May 4, 1994, the service was "scheduled to be available to
customers residing in the Seattle Metro area" (Exhibit A,
p. 1) and "[t]he Examiner interprets this as a marketing
strategy, whereby the claimed invention is offered on a
trial basis to determine whether the service meets the
customer's needs" (FR5). Exhibit A, dated May 3, 1994, and
having a first facsimile transmission date of May 4, 1994,
states that "on June 28th [the FindMe service] is scheduled
to be available to customers residing in the Seattle Metro
area." However, there is no evidence that the service was
actually commercially available, as planned, on June 28th
(which would have been before the critical date). The
evidence is that market testing did not begin until
July 5, 1994 (Exhibit E; Declaration, para. 19). Exhibit A
does not indicate that the "trial basis" is a sale or offer
for sale of the FindMe service or that it is anything other
than an experimental use.
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