Appeal No. 97-2491
Application 08/514,010
means that
provides a different seal such as the labyrinth seal disclosed in the Willden patent. Additionally, the
“specific details” enumerated by declarant Reichental in paragraph 15 are either not apparent from the
videotapes, or are not relevant to the obviousness issues raised in the present appeal because they are
not part of the invention as presently claimed, or both. In this regard, we particularly note that declarant
Reichental makes no mention whatsoever of the single center-folded sheet bag forming technique that
forms the fundamental issue in the present appeal. Accordingly, appellants’ evidence does not tie the
alleged copying to any distinctive feature, much less the center-folded sheet bag forming technique
argued in the present appeal as the distinctive feature of the claimed invention.
In light of the foregoing, appellants’ evidence of nonobviousness is entitled to relatively little
weight in that it does not persuasively establish that Insta-Foam abandoned the technology embodied in
the Willden patent and instead copied appellants’ technology as embodied in the claimed invention.6
Furthermore, even assuming that appellants had sufficiently demonstrated copying, that
evidence is not necessarily controlling. See Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 768, 9
USPQ2d 1417, 1426 (Fed. Cir. 1988), cert. denied, 493 U.S. 814 (1989). As the court stated
6Alleged copying is not persuasive of nonobviousness when the copy is not identical to the
claimed product. See Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 317, 227 USPQ 766,
771 (Fed. Cir. 1985).
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