Appeal No. 2004-0575
Application 09/206,005
OPINION
In reaching our decision on the issues raised in this
appeal, we have carefully considered appellant’s specification
and claims, the applied prior art references, the declaration by
Mr. Richard V. Spiegel under 37 CFR §1.132 filed June 17, 2002,
and the respective viewpoints expressed by appellant and the
examiner. As a consequence of our review, we have made the
determination that the examiner's rejection of claims 1 through
3, 5 and 12 under 35 U.S.C. § 102(b) based on prior sale will be
sustained, while that of the claims on appeal under 35 U.S.C.
§ 102(b) based on public use will not be sustained. In addition,
the examiner’s rejection of claims 1 through 3, 5 and 12 under
35 U.S.C. § 103(a) will likewise not be sustained. Our reasoning
follows.
PRIOR SALE UNDER 35 U.S.C. § 102(b)
Turning to the rejection of claims 1 through 3, 5 and 12
under 35 U.S.C. § 102(b) based on prior sale, we look to
appellant’s § 132 declaration filed June 17, 2002 and note that
Mr. Spiegel, then an engineer with Form Rite Corp., met with
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