Appeal No. 2005-2174
Application No. 10/060,614
the evidence of commercial success proffered. Id. Considered together, Exhibits A and
B indicate that one of the major features of the Impulse 220 is sequential or pulsing
lighting which “acts like a magnet to draw attention” (Exhibit B). As the claims on
appeal do not call for such sequential or pulsing lighting or illumination, the nexus
between any commercial success enjoyed by the Impulse 220 and the claimed
invention is somewhat suspect.
The Reynolds I declaration also lacks any corroboration for the alleged feedback
from customers attributing the commercial success of the Impulse 220 broadly to the
combination of a deflectable display sign and illumination or for the purported interest in
the product from several companies.
Exhibit D, which relates to a computerized display sign controlled by wireless
technology, simply does not establish copying of the claimed invention by a competitor.
As for the assertion of long-felt need in the art and the solution thereto by the
claimed invention, the relevant consideration is a long-felt but unsolved need in the art.
Monarch Knitting Machinery Corp. v. Sulzer Morat GmbH, 7139 F.3d 877, 45 USPQ2d
1977, 1983 (Fed. Cir. 1998). In short, the Reynolds I declaration does not provide any
evidence corroborating the asserted existence of a long-felt need in the art, the failure of
others to solve the problem (see Vandenberg v. Dairy Equip. Co., 740 F.2d 1560, 1567,
224 USPQ 195, 199 (Fed. Cir. 1984)) or that the claimed invention did solve the
problem (see In re Cavanaugh, 436 F.2d 491, 168 USPQ 466 (CCPA 1971)).
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