Steven G. Lough v. Brunswick Corporation, D/B/A Mercury Marine

NEWMAN, Circuit Judge, with whom Circuit Judge RADER joins, dissenting from the Order declining the suggestion for rehearing en banc.

In converting the factual question of experimental purpose into a matter of law, our court has cut another notch in the removal of patent issues from the trier of fact." The appellate/trial relationship is distorted in the panel’s treatment of'the factual question of whether this use of Mr. Lough’s engine seal assembly was primarily experimental and therefore not a “public use” in terms of § 102(b). The panel’s treatment is squarely in conflict with precedent.…