Appeal No. 97-3194 Page 29
Application No. 08/442,816
million units represent a minimal showing of commercial
success because "[w]ithout further economic evidence
. . . it would be improper to infer that the reported sales
represent a substantial share of any definable market"); see
also In re Baxter Travenol Lab., 952 F.2d 388, 392, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991) ("[I]nformation solely on numbers
of units sold is insufficient to establish commercial
success."); Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1151,
219 USPQ 857, 861 (Fed. Cir. 1983) (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 appellant has failed to
establish commercial success.
Even assuming that the appellant 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
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