Appeal No. 2004-1046
Application No. 09/354,203
Moreover, the appellant does not identify tangible evidence
establishing that the actual structure(s) of the sold units are
reasonably commensurate with the “support member” as broadly
recited in appealed claim 7. In this regard, we observe that
appealed claim 7 does not necessarily require the support
member, as broadly recited, to provide any of the advantages
discussed in the declarations or in the specification.
Accordingly, it cannot be said that the appellant has presented
“tangible evidence to support a contention that [the claimed]
invention actually has provided a long-awaited, widely-accepted,
and promptly-adopted solution to the problem extant in the art.”
The appellant has also failed to prove failure of others.
Although the appellant states that “buckets are commonly
employed to aid a drywaller in stepping up onto the bench
platform” and to the appellant’s knowledge “no satisfactory
alternative to the use of a bucket was introduced to the drywall
industry prior to” (emphasis added) the claimed invention (Aug.
22, 2000 declaration, page 1), we are not told that all drywall
benches suffer from the problems described in the specification.
Nor are we told that the use of buckets (or other similar
objects) was the only alternative solution. If other
actually obtained would not have been expected by one skilled in
the art at the time of invention).
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