Appeal No. 1997-0449
Application 08/380,244
Exhibit F of Jenkins II supports a conclusion that shingle
products bearing release material like those of Exhibits A-E
of Jenkins I correspond to the subject matter of the appealed
claims. It has been stated that access in combination with
similarity can create a strong inference of copying. See
Cable Elec. Prods. v. Genmark, Inc., 770 F.2d 1015, 1027, 226
USPQ 881, 888 (Fed. Cir. 1985). In addition, the circumstance
that the alleged copying activity subsequent to late 1989
involves a number of manufacturers suggests that the claimed
invention was well received in the roofing shingle making
industry. The above considerations lead us to conclude that
the Jenkins declarations support a conclusion of copying by
others of the subject matter of the appealed claims.
We have carefully weighed the examiner’s evidence of
obviousness (i.e., the applied prior art references) against
appellants’ evidence of nonobviousness (the Jenkins I and
Jenkins II declarations). In so doing, we are aware that,
depending on the facts of each case, copying by others may or
may not be indicative of nonobviousness (see, for example,
Cable Elec. Prods. v. Genmark, Inc., 770 F.2d at 1028, 226
11
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007