Appeal No. 96-2623
Application No. 08/240,095
(determination of obviousness not erroneous where evidence of
commercial success consisted solely of number of units sold and
where no evidence of nexus). On the basis of the limited
information provided by the declarant, we conclude that the bare
statement in the Bialic declaration that there was annual sales
of about $400,000 fail to establish commercial success.
Even assuming that the appellants had sufficiently
demonstrated commercial success, that success is relevant in the
obviousness context only if it is established that the sales were
a direct result of the unique characteristics of the claimed
invention, as opposed to other economic and commercial factors
unrelated to the quality of the claimed subject matter. See
Cable Elec., 770 F.2d at 1027, 226 USPQ at 888. In other words,
a nexus is required between the sales and the merits of the
claimed invention. In ex parte proceedings before the Patent and
Trademark Office, an applicant must show that the claimed
features were responsible for the commercial success of an
article if the evidence of nonobviousness is to be accorded
substantial weight. Merely showing that there was commercial
success of an article which embodied the invention is not
sufficient. Ex parte Remark, 15 USPQ2d 1498, 1502-03 (Bd. Pat.
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