Appeal No. 97-3194 Page 28
Application No. 08/442,816
well established sellers of bicycle security devices, and has
resulted in a net decrease in the market share of these
competitive devices. This is even more surprising when
considering the dominance of the market by these other
manufacturers compared to the total absence of Winner from the
bicycle lock market until less than two years ago.
We do not believe that the declaration establishes
commercial success of the invention as set forth in claims 3,
4, 6, 9 to 20, 31 to 36 and 44 to 46. In that regard, the
declaration provides no data concerning whether the amount of
sales of the bicycle lock represents a substantial share in
this market. Although the declaration indicates that over
$185,000 had been spent on the bicycle locks in a three month
period, the declaration provides no indication of whether this
represents a substantial amount in this market. Our reviewing
court has noted in the past that evidence related solely to
the number of units sold provides a very weak showing of
commercial success, if any. See In re Huang, 100 F.3d 135,
137, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996); Cable Elec.
Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1026-27, 226
USPQ 881, 888 (Fed. Cir. 1985) (finding that sales of 5
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