Appeal No. 96-3446
Application 08/327,147
(CCPA 1973). In particular, the examiner stresses that "there is no
indication that sales were not the result of advertising or other extraneous factors not related to the
invention" (answer, page 15).
It is well settled that, to consider objective evidence of nonobviousness, the applicant has the
burden of showing that there is a nexus, i.e., a legally and factually significant connection, between the
proven success and the claimed invention. In re Paulsen, 30 F.3d 1475, 1482, 31 USPQ2d 1671,
1676 (Fed. Cir. 1994). We consider that appellant has carried that burden here. The invention in issue
is a relatively simple one, involving a dance stocking or pair of tights which are conventional except for
the presence at the lower end of a foot hole surrounded by a collar. Since the PRIMA SOFT tights do
not appear to include any feature distinguishing them from conventional tights other than the claimed
foot hole, it seems evident that the claimed invention was the reason for the growth in the number of
dancewear stores carrying the PRIMA SOFT tights (to 265 stores out of an estimated 300, according
to appellant's Declaration II), in other words, that there was a nexus between the claimed invention and
the commercial success of the PRIMA SOFT tights. This is borne out by the above-quoted
statements from the Score declaration.
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