Appeal No. 2004-0575
Application 09/206,005
acceptance, assuming consideration, then the offer is not a
commercial offer for sale under § 102(b). Id. At 1048 (brief
page 6).
Appellant further urges that, in this case, the development of
prototypes for Ford for evaluation, without any commercial offer
in place dictating the unit price for “commercially reasonable
numbers,” was normal in the context of its technological
development.
Like the examiner, it appears to us that Exhibits C, E and F
of Mr. Spiegel’s § 132 declaration provide evidence of
negotiations and a commercial transaction between Form Rite and
Ford Motor Company for transmission cooler-bypass units which
were “ready for patenting” prior to the critical date of November
17, 1994. While notations on the sketch of Exhibit A indicate
that 200+ prototypes were being sought by Ford by August 23, the
“informal request” or order from Ford for 10 prototypes dated
August 26, 1994 (Exhibit E) indicates an “URGENT” need for those
units. The “formal request” or purchase order from Ford’s
engineer Al Craig on August 31, 1994 (Exhibit F) indicates Ford’s
desire to procure 10 Banjo assemblies (bypass units like that
shown in Exhibit C of the § 132 declaration) at a price of $700
10
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