Appeal No. 1998-1015
Application No. 08/208,912
Elec. Prod. Inc. v. Genmark, Inc., 770 F.2d 1015, 1026-27, 226 USPQ 881, 888 (Fed.
Cir. 1985). Hence, not only is the declaration evidence not commensurate in scope
with the degree of protection sought by the appealed claims, but it may very well be that
the commercial success enjoyed was, at least in part, due to the specific colors
marketed.
Also, the sales data of the declaration must be placed in perspective by evidence
demonstrating that the subject invention displaced prior art articles or surpassed the
volume sales of prior art articles or that appellants' market share increased significantly
after introduction of the claimed invention. Accordingly, the examiner's criticism is well
taken that the declaration provides no evidence of the relative sales and advertising
budgets between the Color FX series of toys and other similar toy vehicles which
employ reversible thermochromic coloring materials such as "Color Racers."
Manifestly, the sales data recorded in the declaration has little
meaning if not presented in comparison to the sales of similar toys which do not use the
claimed coloring material.
Furthermore, the declaration evidence is not commensurate in scope with the
subject matter encompassed by the appealed claims for the additional reason that the
appealed claims broadly embrace all color memory toys, while the declaration evidence
is limited to a specific toy vehicle.
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