Ex Parte 6196681 et al - Page 14


                Appeal 2007-0554                                                                                 
                Reexamination Nos. 90/006,118 & 90/006,254                                                       
                Patent 6,196,681 B1                                                                              
                       facie obviousness is a legal conclusion, not a fact.  Facts established                   
                       by rebuttal evidence must be evaluated along with the facts on which                      
                       the earlier conclusion was reached, not against the conclusion itself.                    
                       Considering the Declaration of Phillip M. Johnson, “Vice President of                     
                Research and Development and Quality Assurance of Bacou-Dalloz USA,                              
                Inc., the owner of the above patent” (Decl. 132, p. 1), we find a dearth of                      
                requisite facts to support Appellant’s argument that the full scope of the                       
                claimed subject matter is patentable over the applied prior art.  We are                         
                overwhelmed by deficiencies found in the declaration and attached Exhibit                        
                B in support thereof.                                                                            
                       Johnson states that Exhibit B demonstrates commercial success which                       
                is said to be “directly attributable to the invention of claims 1-8” (Decl. 132,                 
                para. 3).  Exhibit B purports to be “based on records kept in the ordinary                       
                course of business by Bacou-Dalloz USA, Inc. sales of the Genesis safety                         
                eye covering product made and sold by the assignee of the above-identified                       
                patent and corresponding substantially to the invention shown, described and                     
                claimed in claims 1-6 and made by the method of claims 7 and 8 of above                          
                patent” (Decl. 132, para. 2).  Exhibit B is submitted to show the commercial                     
                success of “Genesis” in the years 2000-2005 by reporting the number of                           
                “Genesis” units sold, the dollar amount of sales, and “ASP” (undefined) for                      
                each year.  While Johnson declares that sales of “Genesis . . . [corresponds]                    
                substantially to the invention shown, described and claimed in claims 1-6”                       
                (Decl. 132, para. 2) and “is directly attributable to the invention of claims 1-                 
                8” (Decl. 132, para. 3), we are unable to determine:  (1) how “the Genesis                       
                safety eye covering product” relates to the full scope of the invention                          

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