Appeal No. 96-2623
Application No. 08/240,095
We also do not consider the declaration to have presented
sufficient evidence that the appellants' invention fills a long
felt need. Establishing a long felt need requires objective
evidence that an art recognized problem existed in the art for a
long period of time without solution. Thus, the need must have
been a persistent one that was recognized by those of ordinary
skill in the art. See In re Gershon, 372 F.2d 535, 539, 152 USPQ
602, 605 (CCPA 1967). The declaration does not establish that a
long felt need existed since the declaration fails to provide any
evidence that an art recognized problem existed in the art for a
long period of time without solution.
In the final analysis, evidence of nonobviousness, although
being a factor that certainly must be considered, is not
necessarily controlling. Newell Companies, Inc. v. Kenney
Manufacturing Co., 864 F.2d 757, 768, 9 USPQ2d 1417, 1426 (Fed.
Cir. 1988).
In view of the foregoing, we are satisfied that when all the
evidence and arguments are considered, the totality of the
rebuttal evidence and arguments cannot be accorded substantial
weight, so that, on balance, it fails to outweigh the evidence of
23
Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: November 3, 2007