Appeal No. 1999-1002
Application No. 08/672,493
We are not persuaded by the examiner’s argument that the
testing could have been conducted in-house (Examiner’s Answer,
page 6) since it is merely conclusory. The examiner simply
dismisses appellants’ reasons for the various testing sites
without providing adequate explanation.
We are also in agreement with appellants that the testing
was conducted under their supervision in accordance with
factors (C), (D), and (E). The evidence of record is
sufficient to conclude that representatives of the
appellants/assignee regularly inspected the invention during
the period of experimentation and that the testing was
conducted under the supervision and control of the
appellants/assignees. Routine inspections, supervision, and
control of the experiment by the inventor are factors that
indicate conduct within the experimental use exception to
102(b). Egbert, 104 U.S. at 336.
Xerox employees inspected the experimental rolls every
six weeks throughout the testing and although Xerox employees
did not conduct the testing between inspection dates, the
employees of the field test facilities who conducted the
testing were under the control and supervision of the
appellants/assignees. The employees had a general
13
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: November 3, 2007