Appeal No. 2003-1775
Application No. 09/845,925 Page 18
specific types of peanut butter and jelly used in the sandwiches
sold has not been established on this record. Nor have
appellants furnished any sales figures for competing products.
As such, it is not clear from the submitted evidence if the sales
are due to any potential merit of the present invention or if
they are the result of other factors. Appellants have not
carried their burden of establishing that nexus.
Concerning the litigation with respect to the patent issued
from the grand parent application, we do not find that the mere
existence or the filing of such a civil action represents
persuasive evidence of copying as seemingly asserted by
appellants (reply brief, page 2).
In view of the foregoing and for reasons as set forth in the
answer, we are satisfied that when all the evidence and arguments
before us are considered, the evidence of nonobviousness fails to
outweigh the evidence of obviousness. Accordingly, we will
sustain the examiner’s separate rejection of claims 40 and 41.
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