Appeal No. 2005-2174
Application No. 10/060,614
about 2.6 million dollars from June 1995 through 1996, projects gross revenues of 2.3
million dollars or higher for 1997, alleges increased sales in store brand products and
food items from the use of the Impulse 220 (see Exhibit C), attributes the commercial
success of the product based on feedback from customers to the unique combination of
a deflectable display sign and illumination, reports interest in the product from several
companies, charges copying of the product by at least one competitor (see Exhibit D),
and submits that the product solves long-standing problems in the art of retail marketing
relating to specific product differentiation and identification from a distance (see Exhibit
E). The declarant (see paragraphs 24-54) also weighs in on the legal and factual issues
raised during the prosecution of Application Nos. 08/406,752 (which is discussed above
in conjunction with the matter of issue preclusion) and 08/058,197.
Reynold’s statement of gross revenues for the Impulse 220 of about 2.6 million
dollars from June 1995 through 1996 does not, in and of itself, establish commercial
success of this product. Bald sales figures such as these that are not presented in any
meaningful context, e.g., share of a definable market or profitability per unit, show little
in the way of commercial success. See Cable Elec. Prods. v. Genmark, Inc., 770 F.2d
1015, 1026-27, 226 USPQ 881, 888 (Fed. Cir. 1985). The projected gross revenues for
1997 suffer the same flaw and are unduly speculative. The one month increase in store
brand products and food items shown in Exhibit C also lacks any meaningful
background or context.
Moreover, a nexus is required between the merits of the claimed invention and
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