Appeal 2007-0554
Reexamination Nos. 90/006,118 & 90/006,254
Patent 6,196,681 B1
claimed; (2) what the utility, design, and cost aspects of the “Genesis” units
sold are; (3) whether the limitations defined in Appellant’s claims are
directly and exclusively responsible for the reported sales; and (4) how
Genesis’ sales compare to sales of products on the market related in design
and utility features, production costs, and price. In short, Appellant has
neither explained its declaration of commercial success, established a nexus
between any commercial success of the “Genesis” product sold and the
claimed invention, nor compared the sales of the product sold to that of the
closest prior art. With the noted deficiencies in mind, we find that Johnson’s
Declaration under Rule 132 amounts is little more than unsupported
arguments of the owner of an invention said to be encompassed by the
claims on appeal and, as such, entitled to little evidentiary weight in support
of the patentability of the full scope of the subject matter claimed.
Moreover, Johnson’s opinions that the claimed unitary structure and
particular elements thereof made by the two-shot process in a single mold
according to Appellant’s claims would not have been obvious over the
applied prior art are not commensurate in scope with the full scope of the
subject matter claimed. Evidence said to support the patentability for
claimed subject matter must be explained and commensurate in scope of the
claimed invention to be persuasive. Here, we have opinion relating to a
question of law which is supported by unexplained evidence. It carries little,
if any, weight.
Finally, given our finding that unitary structures encompassed by
Appellant’s broadest product claims are fully described by Conway and/or
Fecteau, i.e., subject matter encompassed by Appellant’s Claim 1 is the
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