Appeal No. 1999-0194
Application No. 08/436,626
Based on the above, the examiner reasonably concluded
that the evidence was sufficient to meet the PTO’s initial
burden of going forward by establishing a prima facie case
that the claimed invention was in public use and/or on sale in
this country more than one year prior to the filing date of
the present application. See In re Caveney, 761 F.2d 671,
674-75, 226 USPQ 1, 3 (Fed. Cir. 1985)(when the issue of
“public use” or “on sale” is raised with respect to a claimed
invention in a patent application, the burden on the PTO is
only one of a preponderance of the evidence).
II.
Appellant argues that the foregoing activity did not
constitute a “public use” or “on sale” bar under 35 U.S.C.
§ 102(b) “because the Conewago Creek bridge represents an
experimental use or sale of the invention . . . and one stage
in a continuing evaluation thereof” (brief, page 7). In this
regard, appellant considers that “the evidentiary record
formed by these two declarations shows that the Conewago Creek
bridge was an experimental use and sale of the invention and a
part of an evaluation of an invention” (brief, page 8).
13
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: November 3, 2007