Appeal No. 96-3446
Application 08/327,147
have sold to customers in Puerto Rico, Canada, Japan, Philippines and Singapore.
Additional, I have sold the PRIMA SOFT tights to approximately 50 ballet schools and
thousands of individual dancers.
* * * *
The only advertising that I have placed with respect to the PRIMA SOFT product is
the block advertisement in the monthly magazine Dance as illustrated in the Examiner's
Answer. I began running this single ad in the June, 1992 issue of Dance. No ad
appeared in the July, 1992 issue. Thereafter, beginning in August, 1992, I ran the ad
each month in Dance magazine. Subsequently, the ad was changed (as illustrated in
Exhibit IV) in 1993 to introduce a second unrelated product.
Most companies in this industry employ or contract sales personnel to promote and
sell their dance-related products to retail store accounts. Unlike other companies, I
have had no promotion of the PRIMA SOFT product through salespersons. I have
relied solely on the features of the product and the minimal advertising as set forth
above. The typical response to the ad is not a wholesale purchase order from the
retailer, but rather a request for a product sample. Typically, new retail accounts have
placed orders only after they have satisfactorily tried and tested the PRIMA SOFT
product. Therefore, in my opinion, it is the technical features of the product that are the
cause for the purchase by the retail accounts and commercial success.
In his Declaration IV, appellant asserts that recently (i.e., in early 1995), two competitors, Bloch, Inc.
and Capezio/Ballet Makers, Inc., had copied his invention and launched competitive products.
However, at the oral hearing counsel for appellant acknowledged that appellant's (article) claims were
not readable on the Capezio product.
The examiner in his answer finds this evidence insufficient to overcome the rejection because no
nexus between the commercial success and the claimed invention has been shown, citing In re Mageli,
470 F.2d 1380, 176 USPQ 305 (CCPA 1973)) and In re Noznick, 478 F.2d 1260, 178 USPQ 43
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