Appeal No. 2001-2449
Application No. 08/637,802
of obviousness in view of the reference evidence. Appellant has
submitted objective secondary evidence of commercial success to
rebut any prima facie case of obviousness (Brief, pages 6-10).
Therefore we must review the evidence of obviousness against the
evidence of non-obviousness and determine whether a preponderance
of evidence weighs for or against patentability. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992).
Appellant relies upon the Declaration of Bernhard attached to
the Brief but also refers to previous Declarations by Bernhard
(Brief, page 7). We adopt the examiner’s well reasoned analysis of
all of these Declarations (Answer, pages 10-16). We add the
following comments for emphasis and completeness.
Even assuming that appellant had sufficiently demonstrated
commercial success, that success is relevant in the context of
obviousness only if there is evidence that the sales were a direct
result of the unique characteristics of the claimed invention, and
not the result of other economic and commercial factors unrelated
to the quality of the claimed subject matter. See In re Huang, 100
F.3d 135, 140, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996). We also note
that the Bernhard Declaration is in error when stating that Rateau
teaches “only silver copper alloys incorporating large
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