Appeal No. 2004-0575
Application 09/206,005
Exhibit K, dated March 22, 1995, appears to show that Form Rite
was not ultimately selected to provide further bypass units to
Ford.
Based on the evidence of record, we must agree with the
examiner (answer, pages 10-14) that the transfer of 10-12
prototype cooler-bypass units to Ford Motor Company during the
week of October 12, 1994 for the sum of approximately $7000.00
constitutes a commercial transaction and is prima facie a sale of
the invention claimed in the present application prior to the
critical date of November 17, 1994. Moreover, the absence of
evidence in the record that appellant maintained any control over
the prototypes after their sale to Ford, the absence of any
confidentiality agreement between the parties, the absence of any
evidence that the prototypes themselves were marked as
confidential, and the fact that the claims of the present
application “read on” the drawing prepared July 15, 1994 by Mr.
Kargula (Exhibit C of the § 132 declaration), from which the
prototype units were fabricated, leads us to conclude that the
sale to Ford in October 1994 does not fall under the
“experimental use” exception.
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