Appeal No. 97-1931
Application 08/364,826
owner would not be able to show such savings for the same
“invention.”
Assuming arguendo that savings is a legitimate basis for
finding commercial success, then any savings would have to be
based on the amount saved by using the invention compared to the
amount which would be spent if the closest prior art were
followed. Here, Dworkin clearly teaches that any effort to save
money in buying a product must be based on a selection among
several available suppliers. When the Dworkin teachings are
applied to the purchases of a retail establishment, it is clear
that the prior art suggests the use of several wholesale
suppliers for obtaining the best price. Spiegelhoff was using a
single supplier which would have been contrary to even basic
intuition as well as the teachings of the prior art. Although
appellants assert that such data is not available to them, such
data, nevertheless, would be the only data truly probative of
commercial success based on savings.
With respect to the evidence in support of the second
contention of commercial success, we again agree with the
examiner that the facts do not support commercial success within
the meaning of the case law. The first evidence which must be
evaluated is whether the facts support the proposition that the
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