Appeal No. 2005-1378 9
Application No. 09/227,242
customers of ITW Hobart Canada...” See the affidavit and Exhibit 1 in their entirety. Also,
the fact that “FabCOR80XLS” and “Eclipse ULTIMET 716" “have substantially displaced
the use of flux-core weld wire by some customers of ITW Hobart Canada...(emphasis
added)” does not indicate that “FabCOR80XLS” and “Eclipse ULTIMET 716" are widely
accepted and promptly adopted.
Even if “FabCOR80XLS” and “Eclipse ULTIMET 716" are widely accepted and
promptly adopted, their acceptance or adoption does not correlate to the acceptance or
adoption of the claimed subject matter. For the reasons indicated supra, we find that
“FabCOR80XLS” and “Eclipse ULTIMET 716" are not commensurate in scope with the
claimed subject matter. See In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA
1979)(“The evidence presented to rebut a prima facie case of obviousness must be
commensurate in scope with the claims to which it pertains.”); Kulling, 897 F.2d at 1149,
14 USPQ2d at 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).
The appellants have also failed to prove failure of others. In other words, the
appellants have not supplied any “tangible evidence” to support their contention that others
have failed to provide low fume weld wires. In fact, the appellants’ own specification
indicates (page 2) that:
In the field of flux-core weld wires, it is known generally to reduce
fumes by reducing the carbon content in the steel sheath of the weld wire, as
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