Appeal No. 1999-1002
Application No. 08/672,493
a sale within the prohibitions of §102(b). If the use or sale
was experimental, there is no bar under 35 U.S.C. § 102(b).
The basic test is that the experimentation must be the primary
purpose and any commercial exploitation must be incidental.
See MPEP 2133.03(e) (7th Ed., Rev. 1, Feb. 2000). As
indicated above, we have found the activities conducted by
appellants fall within the experimental exception to public
use.
Accordingly, we also reverse the rejection under 35
U.S.C. § 102(b) based on an on sale bar theory.
III. PUBLIC USE/ON SALE REJECTION UNDER 35 U.S.C. 103(a)
The examiner’s 35 U.S.C. § 103(a) rejections suffer the
same deficiencies as his § 102(b) rejections. Accordingly, we
reverse the rejection under 35 U.S.C. § 103(a) based on public
use/on sale.
CONCLUSION
The examiner's rejections under 35 U.S.C. §§ 102(b) and
103(a) are reversed.
REVERSED
)
BRADLEY R. GARRIS )
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