Appeal No. 2005-1416 Page 5
Application No. 09/771,782
forming the shape of a sports projectile. "For obviousness under § 103, all that is
required is a reasonable expectation of success." In re O'Farrell, 853 F.2d 894, 904,
7 USPQ2d 1673, 1681 (Fed. Cir. 1988).
In light of the foregoing and for the reasons expressed by the Examiner, it is
our determination that the Examiner has established a prima facie case of
obviousness with respect to the argued claims on appeal.
"Once a prima facie case of obviousness has been established, the burden
shifts to the applicant to come forward with evidence of nonobviousness to overcome
the prima facie case." In re Huang, 100 F.3d 135, 139, 40 USPQ2d 1685, 1689 (Fed.
Cir. 1996). As indicia of obviousness or nonobviousness, such secondary
considerations as commercial success, long felt but unresolved needs, copying by
others, etc., might be utilized to give light to the circumstances surrounding the origin
of the subject matter sought to be patented and, therefore, may be relevant to the
question of obviousness or nonobviousness. Graham v. John Deere, 383 U.S. 1,
17-18 (1966).
Appellant has presented several declarations as evidence of non-obviousness
of the invention. Appellant states “[s]pecifically, the 31 October 2002 declaration is
evidence of copying by others, the 23 January 2003 declaration is evidence of
licensing by others and copying by others, the 29 January 2003 declaration is
evidence of licensing to others, copying by others, and commercial success, and the
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