Appeal No. 97-1931
Application 08/364,826
invention was successfully marketed based only on the advantages
inherent in the invention. We do not find this to be the case.
Instead, we find the pool of customers being limited to “Pick ‘N
Save retailers who are shareholders in Roundy’s Inc.”
[declaration ¶5] to remove any objectivity this evidence might
have otherwise represented. Since any purchasers or licensees of
the invention would be potential customers of Roundy’s Inc. as
well as shareholders in the company, there could be several other
compelling reasons for such customers to use the invention based
solely on what effect it would have on sales by Roundy’s Inc. We
cannot say what effect this relationship specifically had on the
sale of units as noted in the declaration. What we can say,
however, is that such facts create a legitimate question as to
what was the main reason that the licensees or purchasers used
the product. Since we have no evidence from the purchasers or
licensees directly, we must consider the interpretation of the
facts under all possible scenarios.
Spiegelhoff’s declaration also states that “[e]ach of the
sorters sold or licensed is in my opinion commensurate in scope
with the sorter disclosed and defined in the claims of the patent
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