EDWARDS et al. V. LEVEEN - Page 30





         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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