Appeal No. 1996-1992
Application 07/898,373
Also, customers have switched from both striped casing and clear casing to
Sentinel casing. The switch to Sentinel casing has come despite the
continued availability of striped casing at the same price, and the continued
availability in the U.S. market of nonmigratory uniformly blue casing from a
major competitor. Of special note, is the fact that some customers of clear
casing have switched to Sentinel casing even though Sentinel casing is
priced higher (between 2 and 3% higher) than the corresponding clear
casing.
On page 10 of the Examiner’s Answer, the examiner states that “More generally,
Appellants’ declaration is full of opinions and fails to disclose factual eveidence [sic]
regarding the commercial success of the instantly (sic) invention.” Yet, the table at page 5
sets forth factual evidence regarding sales data for casing such as that required by claims
on appeal as well as striped casing which appears to be representative of Grabauskas. In
addition, the table sets forth sales data for a uniformly colored casing. The table shows
that in the first quarter of 1990 no casing of the present invention was sold. Yet, by the first
quarter of 1992, 16.9% of the casing sold was of the claimed invention. Moreover, the
table shows that in the first quarter of 1990, the striped casing market which was appears
to be representative of Grabauskas was 15.2%, however, by the first quarter of 1992, the
striped casing had dropped to 9.2% of the casing market.
In addition, on pages 9-10 of the Examiner’s Answer, the examiner states that
“Appellants have not provided sufficient detailed factual evidence i.e., proof of sales ... to
determine that commercial success was directly derived from the invention claimed....”
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