(dissenting).
I regret having to dissent in this case, for I feel strongly that the majority opinion evidences a clear understanding and correct interpretation of the relevant legal principles. I wholeheartedly agree with the proposition that, for the purpose of establishing actual reduction to practice of an invention, bench tests may be sufficient and the amount and nature of testing required depends upon the particular invention. Likewise, I agree with the stated position of the majority that the “tests must be such as to indicate that the invention worked as intended in practical use,” and that the “evidence must establish a relationship between the test conditions and the intended functional setting of the invention.”
Thus, the point at which I am constrained to disagree with the majority opinion comes not at the determination of what the law is, but at the application of that law to the facts of this case.
The testimony of White and of Winker indicates that both were satisfied that the tests were successful, and that the invention would operate as they had hoped it would. Standing against this testimony are the statements of Lower, which the majority feels cast sufficient doubt upon the quality and nature of the tests as to negate the significance of the conclusions of White and Winker. I cannot agree. Appellant’s burden in this case is one of proof by a preponderance of the evidence. And when Lower’s testimony is properly weighed, along with the other evidence, I feel that appellant has nevertheless established his ease by a preponderance.
*117Lower s statements regarding the adequacy of the tests are at best general, and at worst, exceedingly vague. Nowhere does he point out specific shortcomings on the basis of which it could be said there was a failure to establish ■“a relationship between the test conditions and the intended functional setting of the invention.”
Since, in my opinion, the board improperly weighed the evidence on behalf of appellant, and since the board elected not to consider the evidence on behalf of ap-pellee, I would remand the case for a determination of priority based on a consideration of all the evidence.