Appeal No. 96-3446
Application 08/327,147
Although appellant argues that Bounous does not suggest modification of the APA, we do not
agree. As indicated in the APA, making a slit or hole in tights to allow footed or footless use eventually
caused the tights to run. Bounous suggests a solution to this problem, namely, by knitting the tights with
a collar and seam 22 which "prevent[s] raveling of the fabric" (col. 3, line 57). In view of this teaching
of Bounous, we consider that it would have been prima facie obvious to one of ordinary skill, having
knowledge of the custom of cutting a foot hole in dance tights as described in the APA, to make tights
with a collar and seam surrounding the foot hole in order to avoid the problem of runs or raveling.
Having determined that a prima facie case of obviousness has been established, we now
evaluate the evidence directed to secondary considerations to determine whether it is sufficient to rebut
the prima facie case. In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
Appellant argues that the Score and Spencer declarations, together with three declarations by
the appellant (Juniman I, II and IV declarations, dated July 27, 1993, October 18, 1994, and March
30, 1995, respectively), are
(a) evidence of long felt need for a product and method to solve the problems solved
by applicant's invention as well as (b) evidence of commercial success of the invention.
The commercial success is evidenced by rapid trade acceptance directly attributable to
the features and advantages of the invention. (Brief, page 12).
The claimed tights are sold by appellant under the name PRIMA SOFT. Spencer states in her
declaration that:
Despite a long-felt need within the dance profession for a solution to the problem of
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