Appeal No. 2003-0693
Application No. 09/006,248
context. In this regard, bare sales figures such as those set
forth in the declaration constitute minimal evidence of commercial
success (see In re Huang, 100 F.3d 135, 137, 40 USPQ2d 1685, 1689
(Fed. Cir 1996); Cable Elec. Prods. Inc. v. Genmark, Inc., 770 F.2d
1015, 1026-27, 226 USPQ 881, 887-88 (Fed. Cir. 1985)) where, as
here, there is no evidence of, for example, the size of the market,
appellants’ market share, or growth in appellants’ market share.
For all appellants’ evidence shows, the sale of EAEs to General
Motors could be attributed to economic and commercial factors
(e.g., advertising, position as a market leader, recent changes in
related technology or code requirement) that are unrelated to the
unique characteristics of the claimed invention.
For the foregoing reasons, appellants’ evidence of
nonobviousness cannot be accorded substantial weight. Thus, as in
EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 907, 225 USPQ
20, 25 (Fed. Cir.), cert. denied, 474 U.S. 843 (1985), when all of
the evidence is considered anew, it is our opinion that, on
balance, the evidence of nonobviousness fails to outweigh the
evidence of obviousness with respect to the examiner’s first
rejection of claims 29, 31, 33 and 41.
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