Appeal No. 2005-1378 7
Application No. 09/227,242
The appellants also have not evinced that the so-called “growing sales” of
“FabCOR80XLS and “Eclipse ULTIMET 716" necessarily correlate to the sales of the
claimed metal-core weld wire. Id. We find no evidence to indicate that “FabCOR80XLS
and “Eclipse ULTIMET 716" correspond to or are reasonably commensurate with the
claimed subject matter. See In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058
(Fed. Cir. 1990)(“‘[O]bjective evidence of nonobviousness must be commensurate in
scope with the claims.’”)(quoting In re Linder, 457 F.2d 506, 508, 173 USPQ 356, 358
(CCPA 1972). Exhibit A relied upon by the appellants shows only Eclipse ULTIMET 716
which is said to be a metal-core weld wire. See Exhibit A in its entirety. Eclipse ULTIMET
716 contains 0.026-0.029% carbon, 1.48-1.70 manganese (Mn), 0.75-0.83 silica (Si),
0.01% phosphorous (P) and 0.01 sulfur (S). Id. Silica, phosphorous and sulfur in Eclipse
ULTIMET 716 are not required in the claimed metal-core weld wire. Compare Exhibit A
with claims 1, 3, 5, 8 and 11. The percentage of carbon in Eclipse ULTIMET 716 is greater
than the percentage of carbon recited in claim 3. Compare Exhibit A with claim 3. The
locations of carbon and manganese in Eclipse ULTIMET 716 are not defined in the
manner recited in the claims on appeal. Compare Exhibit A with Claims 1, 3, 5, 8 and 11.
Thus, the appellants have not supplied sufficient evidence to prove that the claimed
invention is commercially successful.
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