Appeal No. 2004-1240
Application No. 09/742,691
(Fed. Cir. 1983). Also, evidence of commercial
success can be downgraded where there is no showing
that the sales represent a substantial share of any
definable market or that the profitability is anything
out of the ordinary in the industry involved. Cable
Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015,
1026-1027, 226 USPQ 881,887 (Fed. Cir. 1985). Eric
Polesuk’s Second Declaration does not provide us with
any of the above-mentioned evidence regarding
appellant’s burden in connection with commercial
success. It would therefore be improper to infer that
reported sales represent a substantial share of any
definable market or that profitability is anything out
of the ordinary in the pertinent industry. Ex parte
Remark, 15 USPQ2d 1498, 1505 (Bd.Pat.App.&Int 1990).
With regard to the issue of “failure of others”,
as stated supra, the issue is whether the failure by
others was merely attributable to a lack of interest,
M.P.E.P. § 716, and a showing of long-felt need should
show that the “failure by others” was not due to a
lack of interest. Eric Polesuk does state that other
persons in the Beauty Industry had been trying to
solve the problem of efficiently dispensing hair foil
for many years. This broad statement is not specific
to any long-felt need of appellant’s particular hair
foil package dispenser having an integrated cutting
blade. Because the “long-felt need” showing is weak,
we also conclude that the “failure of others” showing
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