Appeal No. 2004-1046
Application No. 09/354,203
alternatives exist, there is no explanation on what these
alternatives might be and why they are considered
unsatisfactory.
As to the appellant’s argument based on commercial success,
the appellant must prove that the claimed invention is
commercially successful and that its sales directly resulted
from the merits of the claimed invention. In re Huang, 100 F.3d
135, 139-40, 40 USPQ2d 1685, 1689-90 (Fed. Cir. 1996). Not only
must the appellant provide evidence of the number of units sold
but also evidence of the actual share in a given market. Id.
As we discussed above, the appellant has not established
that the sales of a particular bench step necessarily correlate
to the sales of the claimed invention, which is directed to a
drywall bench including the recited support member. Also, the
appellant has not provided any information on actual market
share, i.e., the number of units sold versus the total numbers
of drywall benches sold during the period in question. As
appreciated by the appellant (appeal brief filed Nov. 24, 2003,
page 13)(“400 sales may not be typically appreciated as
evidencing ‘commercial success’”), information regarding the
sales of 400 units, by itself, does not prove commercial success
for the claimed drywall bench. Further, the appellant has not
established that the relied upon sales were a direct result of
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007