Appeal No. 97-2491
Application 08/514,010
in Cable Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1028, 226 USPQ 881, 889 (Fed. Cir.
1985):
Rather than supporting a conclusion of obviousness, copying could have occurred out
of a general lack of concern for patent property, in which case it weighs neither for nor
against the nonobviousness of a specific patent. It may have occurred out of contempt
for the specific patent in question, only arguably demonstrating obviousness, or for the
ability or willingness of the patentee financially or otherwise to enforce the patent right,
which would call for deeper inquiry. Even wide-spread copying could weigh toward
opposite conclusions, depending on the attitudes existing toward patent property and
the accepted practices in the industry in question.
Therefore, without more evidence, the mere fact of competitor copying, even if established, offers only
equivocal evidence of nonobviousness.
In view of the foregoing, we are satisfied that when all the evidence and arguments are
considered, the evidence of nonobviousness fails to outweigh the evidence of obviousness as in
Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d 1181, 1186 (Fed. Cir.
1997) and EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 907, 225 USPQ 20, 25 (Fed.
Cir. 1985). Accordingly, we sustain the standing rejection of claims 33, 34, 40 and 41 under 35
U.S.C. § 103.
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