Appeal 2007-0274
Application 10/011,629
Firefly reticle (which is said to represent the claimed invention) (Lalik
Declaration 6). The data for actual sales involves only two full years,
namely, 2003 and 2004. Projected sales are given for 2005 but have no
discernable probative value because no actual data is given as the basis for
these projections. The actual sales for 2004 are less than those of 2003, and
declarant explains that this is "because the one-time benefit of filling stores
shelves does not repeat itself in the second year" (id. at 5).
The above discussed evidence of commercial success is not strong.
This is because it is based on only two years of actual sales data and because
the second year of sales is less than the first. If this decrease in second year
sales is due to the first year benefit of filling stores shelves with a new
product (and not due to product rejection by purchasers), the evidence may
be fairly characterized as showing success in commerce (rather than
commercial failure due to product rejection by purchasers). However, the
degree of this success, and thus its probative value is limited for the reasons
given above.
Commercial success is said to be also evidenced by an increase in
assignee Bushnell's market share for riflescopes. According to the Lalik
Declaration (6), "Bushnell's dollar market share of the riflescope category
has grown from 10% in 2002 to 21% in 2004." The declarant states "[t]his
market share increase is due to sales of the Firefly reticle, as illustrated from
the above table [containing sales data]" (id.). As previously mentioned,
however, this table shows a decrease in 2004 sales of Elite riflescopes
having the Firefly reticle. This indicates that the Firefly reticle actually
militated against rather than for the 21% market share achieved by Bushnell
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