Appeal No. 2004-0575
Application 09/206,005
As we well know, the examiner has the burden of proving
public use with facts supported by at least a preponderance of
the evidence. In this particular case, we find no evidence in
the record to support any shopping around of appellant’s
prototype units to other sub-component manufacturers, nor
disclosure of such units to third party “testing subcontractors”
for evaluation, and no evidence of any other form of public use
of appellant’s invention prior to the critical date. In fact,
there is no evidence in this record of exactly how the 10-12
cooler-bypass units shipped to Ford during the week of October
12, 1994 were used or evaluated by Ford. At best, it would
appear that one might infer from the record that Mr. Al Craig of
Ford received the cooler-bypass units prior to the critical date.
In addition, appellant asserts that the business relationship
between Form Rite and Ford gave rise to a reasonable expectation
of confidentiality when the prototypes were transferred to Ford,
and that if such an implied confidentiality agreement did not
exist, no supplier would be willing to transfer any information
or prototypes to automotive manufacturers such as Ford. Absent
evidence to the contrary, we would in general agree with
appellant. Thus, absent any credible evidence in the record
showing public use of appellant’s invention prior to the critical
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