Appeal No. 97-1931
Application 08/364,826
Spiegelhoff’s declarations indicate that using the invention
resulted in his store saving over $4000 per month over the amount
spent before use of the invention. Second, the declarations
indicate that the “invention” was sold or licensed to 16 retail
grocery outlets out of a potential pool of 53 outlets at a cost
of up to $10,000 per unit.
With respect to the evidence in support of the first
contention of commercial success, we agree with the examiner that
the facts do not support commercial success within the meaning of
the case law. The amount of money Spiegelhoff’s Pick ‘N Save
saved by using the invention is not a measure of the
nonobviousness of the invention. First, the fact that the store
was using an inefficient way to order products before the
invention was used is not a basis for recognizing invention.
Appellants admit that the store owners knew that they could buy
the products for less by using plural suppliers, but elected not
to do so because they did not want to spend time and energy in
making this decision. Thus, the store owners deliberately
followed an expensive way to order products just because they did
not want to be bothered with more efficient techniques.
Appellants’ argument could result in a patent being granted to
them for doing business inefficiently whereas an efficient store
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