Appeal 2007-2577
Application 90/006,344
The first ad in February proved to be a great success. L'Image
reacted immediately and was able to produce and ship from
overseas nearly double what was originally forecasted on eight
new items, and did so in time for the second ad that ran just 5
weeks later. At the same time they were working nonstop to
bring new colors and designs to the assortment.
The examiner's interpretation of this accolade is reasonable. The award
specifically attributes success to the February advertisement. It credits
L'Image with logistical skill and with innovation on features not covered by
the claims, such as new colors. The award does not mention the claimed
connectors at all.
We note two additional points for consideration. First, both
declarations are from the inventor and assignee. While inventor or assignee
testimony are not inherently incredible, the declarant's interest (financial,
emotional, etc.) in the outcome is a highly material fact to consider when
assigning weight to the evidence.81 Second, Prazoff notes that Underwriters
Laboratories changed its safety standards such that multi-part connectors
(such as the one in the Lin patent) are no longer allowed.82 If we credit
Prazoff's testimony, the change in the standard alone could explain (and
even motivate) the stated industry shift to connectors with unitary
constructions. Prazoff does not point us to sufficient information (such as
when the standard changed) for us to evaluate the significance of this point
further.
81 Cf. Ferring B.V. v. Barr Labs. Inc., 437 F.3d 1181, 1188, 78 USPQ2d
1161, 1167 (Fed. Cir. 2006) (withheld relationship information was highly
material for purposes of inequitable conduct).
82 2d Declaration 4 (¶28).
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