Appeal No. 2004-1046
Application No. 09/354,203
the unique characteristics (i.e., merits) of the claimed
invention and not other economic and commercial factors
unrelated to the merits of the claimed invention, such as
advertising. Id. Indeed, we note the appellant’s admission
that the sales of the bench step elements were fueled by “word-
of-mouth” and Internet advertising. (Aug. 22, 2000 declaration,
page 4.) Accordingly, the appellant has not met his burden of
proving commercial success.
For these reasons and those set forth in the answer, we
affirm the examiner’s rejection under 35 U.S.C. § 103(a) of
appealed claims 1 through 3 and 7 through 9 as unpatentable over
the combined teachings of the admitted prior art and Acea,
Valentino, or Hays.
The decision of the examiner is affirmed.
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