Appeal No. 2001-0065
Application 09/048,289
Even were we to accept arguendo the Appellants’ interpretation of the claims,
and that there was a nexus, we would still arrive at the conclusion that the probative
value of Exhibits A and B is negligible. The fact that a commercial process is in place in
two locations does not provide evidence of commercial success. The relevant types of
evidence include inter alia, copying, long felt but unsolved need, failure of others,
commercial success, unexpected results created by the claimed invention, unexpected
properties of the claimed invention, licenses showing industry respect for the invention,
and skepticism of skilled artisans before the invention. See, e.g., In re Rouffet, 149 F.
3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed. Cir. 1998).
In In re Huang, 100 F.3d 135, 139-40, 40 USPQ2d 1685, 1689-90 (Fed. Cir.
1996), the Federal Circuit noted that even though several hundred thousand units had
been sold, the evidence had no context which enabled an assessment of its probative
value.
In the present case, Huang has simply not provided sufficient information upon
which the PTO could determine whether the grips were commercially successful.
Although Huang's affidavit certainly indicates that many units have been sold, it
provides no indication of whether this represents a substantial quantity in this
market.
The same applies here. The evidence of record does not establish how many
pulp mills exist worldwide, what percentage changeover this represents, how much
money in materials was saved, how the effluent from the plant was measurably
reduced, or any other quantified benefit. Further, there is no declaratory evidence as to
licenses, royalties, or acclaim within the industry. Of particular note - there are no cost
savings enumerated over the closest prior art despite the heavy emphasis placed upon
this in the Appellants’ arguments.
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