Appeal No. 95-5126
Application No. 08/045,675
regarding appellants’ gear lubricant composition; and the
extent of profitability resulting from the sale of appellants’
gear lubricant composition. Appellants simply fail to meet
their burden of establishing commercial success.
Even were we to conclude that appellants’ unsupported
assertion is sufficient to establish commercial success, we do
not believe that the required nexus is established between the
showing in the specification and the claimed invention. See
Stratoflex Inc. v. Aeroqup corp., supra, at 713 F.2d 1539,
218 USPQ 879 and Cable Electric Products, Inc. v. Genmark,
Inc., 770 F.2d 1015, 1026-27, 226 USPQ 881, 887-88 (Fed. Cir.
1985). In this regard, we find nothing in the specification
to indicate that the gear lubricant formulation referred to
therein corresponds to the claimed invention for the reasons
indicated supra. It must be emphasized that commercial
success must be due to claimed features, and not due to
unclaimed features (i.e., the evidence of commercial success
must be commensurate in scope with the claims which the
evidence is offered to support).
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