Appeal No. 2004-1046
Application No. 09/354,203
commercial product, which according to the appellant falls
within the scope of the claimed invention, to be meritorious
(Exhibits A through F and H). Nevertheless, the appellant has
not identified “tangible evidence” indicating that the claimed
invention provides “a long-awaited, widely-accepted, and
promptly-adopted solution to the problem extant in the art.”5
While Exhibit G shows that the sales for a specific bench step
totaled over 400 units, these sales do not necessarily indicate
that the claimed drywall bench was widely-accepted as a solution
to the problem extant in the art. Even if the only utility for
the sold bench step is in a drywall bench, we are not told that
a sale of about 400 units over about 8 months constitutes a
significant portion of total sales of drywall benches during the
same period, i.e., that the claimed invention was in fact
widely-accepted.
5 Nor has the appellant proffered any evidence to indicate
that one of ordinary skill in the art would have considered the
advantages of the claimed invention to be truly unexpected. In
re D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA 1971)
(holding that the appellants failed to rebut a prima facie case
of obviousness where the asserted differences between the
claimed foams and prior art foams were not shown to be
significant); In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139,
143 (CCPA 1973) (explaining that in order for a showing of
unexpected results to be probative evidence of nonobviousness,
an applicant must establish (1) that there actually is a
difference between the results obtained through the claimed
invention and those of the prior art and (2) that the difference
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