Appeal No. 96-3404
Application 08/145,775
103. See Stratoflex Inc. v. Aeroquip Corp.,713 F.2d 1530,
1538, 218 USPQ 871, 879 (Fed. Cir. 1983). Accordingly, we
consider anew the issue of obviousness under 35 U.S.C. 103,
carefully evaluating therewith the objective evidence of
nonobviousness and argument supplied by the appellant. See In
re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984).
As evidence of nonobviousness the appellant has relied on
an affidavit by Benyon. While the affiant states that the
company for which he works entered into an license agreement
with the appellant for a reef module “disclosed in the patent
application referenced above,” there is nothing to indicate
that the subject matter licensed was that of the claimed
invention. In this regard, we observe that evidence of
commercial success is relevant only if it flows from the
merits of the claimed invention. Sjolund v. Musland, 847 F.2d
1573, 1582, 6 USPQ2d
2020, 2028 (Fed. Cir. 1988). In other words, the commercial
27
Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: November 3, 2007