Appeal No. 2004-0575
Application 09/206,005
each for delivery on September 14, 1994. As far as we can see,
this document represents or reflects an understanding between the
parties and an offer for sale in the contract sense between Form
Rite and Ford Motor Company and was made into a binding contract
by the acceptance thereof represented by the hand written
notation on Exhibit F of “Customer Charge $700 x 10 PCS. =
$7,000.”
The fact that the purchase order (Exhibit F) carries the
notation that Ford intended to test and evaluate the prototype
units for use in their E400 transmission, does not alone provide
evidence that this sale should fall within the “experimental use”
exception to 35 U.S.C. § 102(b). Nor does the fact that Ford
apparently sought some minor design changes in the prototypes
before or at the time of the “informal request” (Exhibit E)
provide evidence of experimental use that inures to the benefit
of appellant, who, from all indications in the record, failed to
maintain dominion and control over the 10-12 prototypes after
their sale to Ford. From the facts of record, we conclude that
the above-noted sale of 10-12 prototype units to Ford was clearly
commercial rather than experimental in nature, and again note
that the drawing prepared July 15, 1994 by Mr. Kargula (Exhibit C
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