Appeal No. 96-3404
Application 08/145,775
success must be due to claimed features, and not unclaimed
features. Joy Technologies v. Manbeck, 751 F. Supp. 225, 231,
17 USPQ2d 1257, 1260-61 (D.D.C. 1990), aff’d, 959 F.2d 226,
229, 22 USPQ2d 1153, 1156 (Fed. Cir. 1992) (features
responsible for commercial success were recited only in
allowed dependent claims, and therefore the evidence of
commercial success was not commensurate in scope with the
broad claims at issue). Moreover, the affiant provides no
facts that tend to establish that the license was requested
and obtained out of recognition and respect for the claimed
invention as opposed to being requested and obtained for other
reasons. EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898,
225 USPQ 20, 26 (Fed. Cir.), cert. denied, 474 U.S. 843
(1985)(license programs sometimes succeed because they are
mutually beneficial to the license group or because of
business judgment that it is cheaper to take licenses than to
defend infringement suits, or for other reasons unrelated to
the unobviousness of the licensed subject matter).
When all the evidence and argument are considered anew it
is our conclusion that, on balance, the evidence and argument
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