Appeal No. 1998-3413
Application No. 08/512,782
secondary considerations submitted by appellant in the
affidavit of Susan Kiley. In weighing all of this evidence
together, we have concluded that the evidence of obviousness
relied upon by the examiner outweighs the evidence of
secondary considerations (i.e., commercial success) contained
in Ms. Kiley’s affidavit. While the affidavit indicates sales
of the TERRAGLAZE product of "approximately $4.5 million" in
the fiscal year ending September 30, 1996 and sales through
February 1997 of "approximately $2.5 million," along with
"modest advertising expenses" of only about $60,000 in FY 96,
we find no evidence in the record of the actual impact of the
claimed subject matter on the marketplace, i.e., we note that
sales figures alone are of no moment when there has been no
nexus established between the sales and the features of the
claimed invention. See, In re Huang, 100 F.3d 135, 140, 40
USPQ2d 1685, 1689 (Fed. Cir. 1996); In re Baxter Travenol
Lab., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991;
and Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1151, 219 USPQ
857, 861 (Fed. Cir. 1983). While Ms. Kiley has indicated in
paragraph 8 of her affidavit that a buyer told her that the
TERRAGLAZE product "was the most unique offering in the
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