Appeal No. 96-2623
Application No. 08/240,095
claims under rejection under 35 U.S.C. § 103 are unpatentable
under 35 U.S.C. § 103.
We do not believe that the declaration establishes
commercial success of the claimed invention. In that regard, the
declaration provides no data concerning whether the average
annual sales of $400,000 of the product incorporating the
features of claims 1-12 represent a substantial share in this
market. Our reviewing court has noted in the past that evidence
related solely to the number of units sold provides a very weak
showing of commercial success, if any. See In re Huang, 100 F.3d
135, 137, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996); Cable Elec.
Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1026-27, 226 USPQ
881, 888 (Fed. Cir. 1985) (finding that sales of 5 million units
represent a minimal showing of commercial success because
"[w]ithout further economic evidence . . . it would be improper
to infer that the reported sales represent a substantial share of
any definable market"); see also In re Baxter Travenol Lab., 952
F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991)
("[I]nformation solely on numbers of units sold is insufficient
to establish commercial success."); Kansas Jack, Inc. v. Kuhn,
719 F.2d 1144, 1151, 219 USPQ 857, 861 (Fed. Cir. 1983)
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