The mere fact that a product is delivered to a distributor does not exempt the transaction from 35 U.S.C. § 102(b). Kalvar Corp. v. Xidex Corp., 384 F. Supp. 1126, 1135, 182 USPQ 532, 539 (N.D.Cal. 1973), aff'd, 556 F.2d 966, 195 USPQ 146 (9th Cir. 1977); see also George R. Churchill Co. v. American Buff Co., 365 F.2d 129, 150 USPQ 417 (7th Cir. 1966). Here, although Insuloid and Tyton shared a common owner, B-H, control of these entities was clearly different; Insuloid was wholly owned by B-H, while the controlling interest in Tyton was held by Ideal.

Submission of the emblems for sale if the customer liked them is not experimentation on the method. See Kalvar Corp. v. Xidex Corp., 384 F. Supp. 1126, 182 USPQ 532 (N.D.Cal. 1973), Aff'd., 556 F.2d 966, 195 USPQ 146 (9th Cir. 1977). In re Theis, 610 F.2d 786, 204 USPQ 188 (Cust.

Robbins Co. v. Lawrence Mfg. Co., 482 F.2d 426, 433 (9th Cir. 1973).Minnesota, supra at 101; Kalvar Corp. v. Xidex Corp., 384 F. Supp. 1126 (D.Cal. 1973), aff'd 556 F.2d 966 (9th Cir. 1977).

Once the evidence shows a public use or sale prior to the critical date, the plaintiff must establish by convincing evidence that the purpose of the activity was solely experimental in nature. Kalvar Corp. v. Xidex Corp., 384 F. Supp. 1126, 1135 (N.D.Cal. 1973), affirmed, 556 F.2d 966 (9th Cir. 1977). Plaintiff's sales department sold or gave away samples of a developed product, primarily to determine whether it could be marketed profitably.

In Xidex, Kalvar asserted also a claim for unfair competition and Xidex counterclaimed charging a violation of the antitrust laws and for declaratory relief with respect to the validity, infringement and enforceability of the process patent. See the Memorandum Opinion and Order of Judge Charles B. Renfrew, D.C., 384 F. Supp. 1126 (1973). When the motions in this case were heard and memoranda submitted, the Xidex case had been already tried but not officially decided, although this Court was advised that Judge Charles B. Renfrew had informed the parties that he had concluded the process patent was invalid.

In its closing brief, PTV argues this assertion should be disregarded because the only evidence to support it is oral testimony. Witness testimony is a form of evidence, subject to determinations of credibility by the trier of fact. United States v. 4.0 Acres of Land , 175 F.3d 1133, 1142 (9th Cir. 1999) ; Kalvar Corp. v. Xidex Corp. , 384 F. Supp. 1126, 1132 (N.D. Cal. 1973), aff'd, 556 F.2d 966 (9th Cir. 1977). Both Trustee and PTV rely extensively on oral testimony, including opinion testimony.