Appeal No. 1999-0194
Application No. 08/436,626
Appellant contends (brief, page 9) that because of the nature
of the invention, a secret use was not possible. Among the
factors urged by appellant on pages 10 and 11 of the brief as
excusing the Conewago Creek bridge activity are that (1) the
test “will not be completed for at least another 64 years,”
(2) “[i]t was necessary to test the invention in a practical
setting, in order to subject the invention to the variable
loading of rolling trucks, weather conditions, etc,” (3)
“[t]he Conewago Creek installation was one of only a small
number of installations; only two bridges have been equipped
with the invention,” (4) “[t]he Conewago Creek installation
was in the nature of a joint venture” involving appellant, the
bridge contractors and PennDoT, (5) “[a] fee was accepted only
to the extent of covering materials (plus overhead,
transportation, and installation),” and (6) “[m]arketing
activities have not occurred.” Similar arguments are made
with respect to the Schuylkill River bridge activity.
III.
Issues arising under the “public use” or “on sale” bar
provisions of 35 U.S.C. § 102(b) must be analyzed in light of
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