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
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