Appeal No. 1999-1002
Application No. 08/672,493
tested fuser rolls appeared virtually identical to
conventional fuser rolls and, thus, the method claimed in the
subject application could not be ascertained from observing
the field tested fuser rolls.
The examiner’s position is that such activities
constitute public use and do not fall within the experimental
use exception. See Answer page 5. The examiner argues that
the coated fuser rolls were visible and therefore disclosed to
the public. To support his contention the examiner states the
applicants admit that, “the flow coated fuser roll may have
been in view to the public during roll removal and
replacement” (Brief, page 6). The examiner further concludes
from the above admissions that because the public “may” have
seen the coated fuser rolls there was a public use. Further,
the examiner argues that the lack of a written confidentiality
agreement between the appellants and the users of the test
facility supports a finding of “public use” within the
prohibitions of §102(b). See Answer page 9.
The Supreme Court laid the foundation for the
experimental use exception to public use by stating that
“[t]he use of an invention by the inventor himself, or of any
other person under his direction, by way of experiment, and in
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