Appeal No. 2004-0575
Application 09/206,005
of the § 132 declaration), from which the prototype units were
apparently fabricated, is virtually identical to drawing Figure 1
of the present application, on which all of the claims on appeal
are readable.
As for appellant’s assertions concerning the fact that
“commercially reasonable numbers” of units were not involved in
the above sale, we fail to see that a sale or offer for sale of
the invention must involve what appellant has characterized as
“commercially reasonable numbers” of units in order to fall
within the proscriptions of 35 U.S.C. § 102(b). In that regard,
we also observe that appellant has provided no case law to
support any such proposition. To the contrary, for example, in
Stearns et al. v Beckman Instruments, Inc., 737 F.2d 1565, 1566,
222 USPQ 457, 458 (Fed. Cir. 1984), it appears the Court found
that the sale of two of the “second prototype” syringes involved
in that case to Dr. Tejada of the EPA for a price of $48 each,
prior to the critical date of February 19, 1975, constituted an
“on sale” bar under 35 U.S.C. § 102(b), notwithstanding that
changes were made to the “second prototype” at about the time of
the sale and which resulted in a “third prototype” being made.
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