CAFC accepts declarations to prove experimental use

The details of the Ceccarelli case:

The Board of Patent Appeals and Interferences af-
firmed the Examiner’s rejection of claims 1, 2, 5-15, and
17 as anticipated under 35 U.S.C. § 102(b) and claims 3,
4, and 16 as obvious under 35 U.S.C. § 103(a) of U.S.
Patent Application No. 10/843,833 (“the application”).
Because the sale at issue was experimental, not commer-
cial, this court reverses.

Background law:

The Patent Act bars issuance of a patent if the appli-
cation is filed more than one year after (1) the product
was sold or offered for sale and (2) the invention is ready
for patenting. Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 67
(1998). A sale for experimental use negates the on-sale
bar. See Del. Valley Floral Grp., Inc. v. Shaw Rose Nets,
LLC, 597 F.3d 1374, 1379 (Fed. Cir. 2010). This court
reviews an “on sale” bar under 35 U.S.C. § 102(b) as a
question of law based on underlying facts. In re Kollar,
286 F.3d 1326, 1329 (Fed. Cir. 2002). This court reviews
the Board’s legal conclusions without deference and
factual findings for substantial evidence. Id.

The punchline:

Mr. Ceccarelli’s First and Second Declara-
tions, however, provide ample evidence that the sale was
experimental, not commercial, in nature. Because the
Board’s finding that the sale was not for experimental use
lacks substantial evidence, this court reverses the Board’s
decision affirming the Examiner’s rejection of claims 1, 2,
5-15, and 17 under 35 U.S.C. § 102(b). Because the sale
was for experimental use, the product sold is not prior art.
See Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1344 (Fed.
Cir. 2007). Therefore, this court reverses the Board’s
decision affirming the Examiner’s rejection of claims 3, 4,
and 16 under 35 U.S.C. § 103(a) as obvious
in light of the product sold and the Ryder patent.