Appeal No. 2001-0099
Application No. 09/042,431
(Fed. Cir. 1991) ("[I]nformation solely on numbers of units
sold is insufficient to establish commercial success.").
Even assuming that appellants had sufficiently
demonstrated commercial success, that success is relevant in
the obviousness context only if it is established that the
sales were a direct result of the unique characteristics of
the claimed invention, as opposed to other economic and
commercial factors unrelated to the quality of the claimed
subject matter. See Cable Elec., 770 F.2d at 1027, 226 USPQ
at 888. Furthermore, it is well settled that evidence of
nonobviousness must be commensurate in scope with the claims
to which it pertains. In re Clemens, 622 F.2d 1029, 1035, 206
USPQ 289, 296 (CCPA 1980); In re Dill, 604 F.2d 1356, 1361,
202 USPQ 805, 808 (CCPA 1979) and In re Tiffin, 448 F.2d 791,
792, 171 USPQ 294, 294 (CCPA 1971). See also In re Grasselli,
713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983).
The Snap-on ratchet wrench discussed in the Brekke
declaration, wherein the central planes of the engagement and
retaining slots form an angle of "about 90 ," is not theo
ratchet wrench recited in appellants' claim 21, which recites
that the central longitudinal planes of the slots form an
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