Interference No. 104,290 evidence from Hansen, it is our determination that the tests or demonstrations performed by LeVeen and Fox in summer and fall of 1993, were not tests that satisfied the requirement of the count with respect to "selected mass," and were not tests that proved the invention would work for its intended purpose, inasmuch as the invention was not tested in its intended functional setting as required by the jurisprudence. This determination is supported by evidence from LeVeen's grant proposal. An inventor (or anyone working in his behalf) cannot be given any greater credit for the success of a test than he himself claims. HaJbleib v. Bendix, 50 App. D.C. 247, 270 F. 683 (1921); Smith v. Nevin, 73 F.2d 940, 944, 23 USPQ 353, 357 (CCPA 1934)("If the inventor, at the time of his concep tion and test did not consider the test successful, the court cannot be called upon, at a later date, to give this test a status which the inventor did not attribute to it at the time."). Cf. Wu v. Davis, 167 USPQ 467, 472 (Bd. Pat. Int. 1968)(in vitro test, at best, was a screening test the mere passing of which fell far short of an actual successful reduction to practice of the count for a specific utility). Finally, we find telling the testimony of LeVeen when he termed the demonstrations or experiments were "exploratory" in 30Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 NextLast modified: November 3, 2007