Appeal No. 2004-1240
Application No. 09/742,691
foil dispensers (AAPA) which had jagged edges.
But no one of skill in the Beauty Industry had
ever created a dispenser as claimed in the
present invention. Polesuk states that it was
not until the product of the present invention
was being sold in commerce that several
competitors copied the product and began to use
the integrated cutting edge as their major
selling feature. Second Declaration, paragraph
4. Polesuk states that the commercial success
of the hair foil package dispenser of the
present invention is not based on any promotion
or advertising or any other business events.
Although Product Club offers for sale the
product claimed in the present invention on
their website, the sales of the product on their
website are less than one half of one percent
(.5%) of the total sales. The commercial
success of the present invention is based on the
self-dispensing package having the integrated
cutting blade. Second Declaration, paragraph 5.
The above statements made by Eric Polesuk touch
on several secondary considerations, e.g., commercial
success and failure by others/long-felt need.
With regard to the issue of commercial success,
an appellant should not make broad statements about
commercial success, but rather should provide specific
details. See, e.g., Ex parte Remark, 15 USPQ2d 1498,
1505 (Bd.Pat.App. & Int. 1990). For example, proof of
commercial success is not simply a matter of producing
sales figures. Appellant must provide evidence, such
as market share, growth in market share, and
replacement of earlier sales by others. Kansas Jack,
Inc. v. Kuhn, 719 F.2d 1144, 1151, 219 USPQ 857, 861
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