Appeal No. 1999-0194
Application No. 08/436,626
“lodestar” test in all cases involving experimental use, it is
nevertheless an important indicator of experimental use. In
re Hamilton, 882 F.2d 1576, 1581, 11 USPQ2d 1890, 1894 (Fed.
Cir. 1989).
The record also does not inform us whether appellant had
any specific plan in mind for determining when and under what
circumstances the invention would be considered a “success,”
or whether any written records were kept that detailed what
progress, if any, was being made to achieve appellant’s plan.
The amount of record keeping is another indicator of
experimental use. Lough v. Brunswick Corp., 86 F.3d 1113,
1120-21, 39 USPQ2d 1100, 1105-06 (Fed. Cir. 1996). Likewise
left unclear is whether the unnamed third party contractor
charged by PennDoT with periodically inspecting the Conewago
Creek and Schuylkill River bridges even knew that testing was
occurring. This is another factor to be considered in
weighing the evidence. C.R. Bard, Inc. v. M3 Sys., Inc. 157
F.3d 1340, 1380, 48 USPQ2d 1225, 1255 (Fed. Cir. 1998).
Further, the fact that appellant may not have realized a
profit from the sale of the claimed invention (N12, N19) is
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