Appeal No. 2004-1586
Application No. 10/132,863
matter, i.e., unattached plastics having oil change discounts.
Indeed, the “Krane” declaration does not indicate whether the
“key tags” themselves are the claimed combination of a key chain
and a plastic having oil change discounts or an unclaimed plastic
having oil change discounts. Thus, we concur with the examiner
that the appellant has not established that the claimed key chain
assembly is commercially successful and its commercial success is
directly attributed to its own unique characteristics (nexus
between the alleged commercial success and the claimed
invention). In re Huang, 100 F.3d 135, 139-40, 40 USPQ2d 1685,
1689-90 (Fed. Cir. 1996).
The appellant appears to contend that there is wide spread
copying by competitors. See the Brief, page 21. However, the
appellant has not supplied enough evidence to demonstrate that
there was widespread acceptance and adoption of the claimed
subject matter and there was a nexus between the adoption and the
merits of the claimed subject matter. Cable Electric Prods. v.
Genmark, Inc., 770 F.2d 1015, 1028, 226 USPQ 881, 889 (Fed. Cir.
1985). We find that nothing in the “Hart” and “Krane”
declarations, for example, supports such contention.
The appellant alleges that the claimed subject matter won
first or second prize in at least 23 different occasions. See
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