Appeal No. 1999-0194
Application No. 08/436,626
unreasonable.
We are willing to accept that, at least initially,
appellant’s precritical date activity may have involved an
element of experimentation. However, on the record before us,
there is ample evidence from which to conclude that there came
a time well before the critical date when appellant’s
activities ceased to be for the purpose of experimentation,
and instead shifted to developing a market for the invention.
In this regard, it is notable that appellant’s diaphragms did
not conflict in any way with PennDoT’s well established bridge
design standards, notwithstanding that they were precast. See
B6 (CADs may be used as long as they do not conflict with the
design standards established by PennDoT), B9 (the Conewago
Creek bridge was bid using CAD) and B10 (the precast design
was included as part of the winning bid and accepted by
PennDoT). Accordingly, PennDoT’s willingness to accept
appellant’s precast diaphragm design is an early indication
that the ability of appellant’s invention to function, from an
engineering point of view, in the same manner as conventional
bridge diaphragms was not in doubt. Also notable is the lack
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