Appeal No. 1998-2941 Page 44
Application No. 08/061,985
Reexamination Control No. 90/003,682
In this case the appellants have submitted evidence
regarding (1) commercial success, (2) awards and acclaim in
the industry, (3) copying by others, (4) long felt need,
(5) unexpected results, and (6) failure of others.13
To be of probative value, any secondary evidence must be
related to the claimed invention (i.e., a nexus is required).
Thus, the weight attached to evidence of secondary
considerations will depend upon its relevance to the issue of
obviousness and the amount and nature of the evidence. To be
given weight in the determination of obviousness or
nonobviousness, evidence of secondary considerations must be
relevant to the subject matter as claimed, and therefore we
must determine whether there is a nexus between the merits of
the claimed invention and the evidence of secondary
considerations. See Ashland Oil, Inc. v. Delta Resins &
Refractories, Inc., 776 F.2d 281, 305 n.42, 227 USPQ 657,
673-674 n. 42 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017
13For a general discussion of this evidence see pages
117-145 of the brief.
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