Appeal No. 2001-0099
Application No. 09/042,431
the handle, as well as the secure locking of the wrench. The
declarant states a belief that the noted sales demonstrate
commercial success for the product and that the sales success
is directly attributable to the claimed features of the lock
button and retaining mechanism.
We conclude that the Brekke declaration does not
persuasively establish commercial success of the claimed
invention. In that regard, the declaration provides no data
concerning whether the amount of sales of the Snap-on ratchet
wrenches represents a substantial share in this market. Our
reviewing court has noted in the past that evidence related
solely to the number of units sold provides a very weak
showing of commercial success, if any. See In re Huang, 100
F.3d 135, 137, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996); Cable
Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1026-27,
226 USPQ 881, 888 (Fed. Cir. 1985) (finding that sales of 5
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
14
Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: November 3, 2007