Appeal No. 2000-1449
Application No. 08/838,133
The “AFFIDAVIT PURSUANT TO 37 C.F.R. 1.132” by inventor
Charles J. Long, Jr.
Although the statements of Mr. Long found in the paper filed
on April 12, 1999 are not evidence as earlier indicated, the points
raised by Mr. Long have been considered.
At the outset, we observe that there is no factual support in
the record before us for the statements made by Mr. Long in his
“affidavit” regarding the revenue and market share of the “28mm
Sport Cap” said to embody features of the claimed invention. In
any event, assuming that over $11 million in revenue have been
derived from sales of the “28mm Sport Cap,” and that such sales
represent an increase in market share from zero to 15%, as alleged
by Mr. Long in paragraph 2, a proper nexus between market success
and the merits of the claimed invention must be established in
order for any such showing of commercial success to be accorded
substantial weight.5 In the present case, a proper nexus has not
been established. For example, in paragraph 3(a) of Mr. Long’s
statement, it is stated that the commercial success of the “28mm
5See, for example, Simmons Fastener Corp. v. Illinois Tool
Works, Inc., 739 F.2d 1573, 1575, 222 USPQ 744, 746 (Fed. Cir.
1984), cert. denied, 471 U.S. 1065 (1985), and Stratoflex Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1539, 218 USPQ 871, 879 (Fed. Cir.
1983).
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