Appeal No. 2006-2074
Application No. 10/158,197
John Deere 383 U.S. 1, 17 148 USPQ 459, 467 (1966). Evidence of non-
obviousness must be commensurate in scope of the claims In re Tiffin 448
F.2d 791, 171 USPQ 294 (CCPA 1971). Copying of the invention by
competitors is another form of secondary evidence.
Appellants submitted two declarations under 37 C.F.R. §1.132, from
Scott Fedor (co-inventor), the first was submitted on July 23, 2004
(hereinafter declaration) and the second, a supplemental declaration, was
submitted on November 23, 2004 (hereinafter supplemental declaration). In
the declarations Scott Fedor discusses the success of Calphalon’s
“Contemporary” line of knife sets, which are asserted to embody the claimed
invention. See declaration, paragraph 9. Mr. Fedor’s declarations use
Calphalon’s “Traditional” line of knife sets as a basis of comparison. See
declaration, paragraph 10. Mr. Fedor states: “It is my understanding that
there are no substantial price or quality difference between the Traditional
and Contemporary lines, nor were the marketing efforts associated with the
introduction of these lines substantially different.” See declaration,
paragraph 12. In paragraphs 14 through 17 of the declaration, and
accompanying tables, Mr. Fedor shows when the “Contemporary” knife sets
were introduced, they enjoyed a larger market share (both in terms of dollar
share and unit share) than associated with the “Traditional” knife sets.1 We
note, as the examiner points out, the sales of the “Contemporary” knife sets
peeks in May 2003 and steadily declines through April 2004. However, we
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