FLANDERS et al v. MOORMAN et al - Page 14




          Interference No. 103,891                                                    



          false negative one.  These three pages constitute the entirety of           
          the Concept S shown to the attendees at the marketing study.                
                    Anticipation is a question of fact.   Glaverbel Societe           
          Anonyme v. Northlake Mktg. & Supply , 45 F.3d 1550, 1554, 33                
          USPQ2d 1496, 1498 (Fed. Cir. 1995).  We are in agreement with               
          the parties that the claimed subject matter of the parties was              
          not in public use based on the Concept S presentation.  As such,            
          no device conforming to the claimed invention had been con-                 
          structed or was in existence to use at the time of the presenta-            
          tion.  Nor was the claimed subject matter on sale.  The moving              
          parties have proved neither an offer for sale or that the claimed           
          subject matter was reduced to practice or ready for patenting.              
          See Pfaff v. Wells Elecs., Inc. , 525 U.S. 55, 67-68, 48 USPQ2d             
          1641, 1646-47 (1998) ("First, the product must be the subject of            
          a commercial offer for sale" and “the invention itself must also            
          have been "ready for patenting" at the time of the offer or                 
          sale--e.g., the invention must have been reduced to practice or             
          embodied in "drawings or other descriptions . . . that [are]                
          sufficiently specific to enable a person skilled in the art to              
          practice the invention.").  Accordingly, we concur with the                 
          parties that Concept S is, at most, prior art under 35 U.S.C.               
          § 102(a).                                                                   



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