Appeal No. 96-2623
Application No. 08/240,095
App. & Inter. 1990). Compare Demaco Corp. v. F. Von Langsdorff
Licensing Ltd., 851 F.2d 1387, 7 USPQ2d 1222 (Fed. Cir.), cert.
denied, 488 U.S. 956 ( 1988). See also Pentec, Inc. v. Graphic
Controls Corp., 776 F.2d 309, 227 USPQ 766 (Fed. Cir. 1985)
(commercial success may have been attributable to extensive
advertising and position as a market leader before the
introduction of the patented product); In re Fielder, 471 F.2d
640, 176 USPQ 300 (CCPA 1973) (success of invention could be due
to recent changes in related technology or consumer demand; here
success of claimed voting ballot could be due to the contemporary
drive toward greater use of automated data processing
techniques).
The declaration contains only an assertion that the products
sold incorporated the combination of features defined in claims
1-12. This alone is insufficient to establish the required
nexus. Claims are not technical descriptions of the disclosed
inventions but are legal documents like the descriptions of lands
by metes and bounds in a deed which define the area conveyed but
do not describe the land. Because of this characteristic of
claims, the commercial success of a machine "claimed" may be due
entirely to claimed subject matter not recited in the claims
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