Appeal No. 1995-4961
Application No. 29/014,077
ordinary skill in the articles involved. Id. Appellant also
refers to specific portions of evidence and declarations to
support his positions. Id. The examiner has not specifically
responded to many of these arguments. See Answer in its
entirety. Nor has the examiner made adequate factual analyses on
the sufficiency of these declarations and other factual evidence
relied upon by appellant. Id.
In addressing the sufficiency of each and every evidence
relied upon by appellant, the examiner must keep in mind that
appellant has the burden of supplying sufficient proof to
establish his position. To establish commercial success, for
example, appellant must provide sufficient proof to demonstrate
that the claimed squash racquet is commercially successful and
the sales are directly resulted from the merits of the claimed
subject matter. See In re Huang, 100 F.3d 135, 139-40, 40 USPQ2d
1685, 1689-90 (Fed. Cir. 1996). To establish copying by others,
appellant must demonstrate that there was a widespread acceptance
and adoption of the claimed subject matter and a nexus between
the adoption and the merits of the claimed subject matter. See
Cable Electric Prods. v. Genmark, Inc., 770 F.2d 1015, 1028,
226 USPQ 881, 889 (Fed. Cir. 1985).
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