Appeal No. 2005-1416 Page 6
Application No. 09/771,782
31 July 2003 declaration1 is evidence of licensing to others, copying by others, and
commercial success; all of these are indications of non-obviousness of the
invention.”2 (Brief, pp. 4-5). Appellant also relies on the declaration filed 12 April
2004 for showing the sale of necklaces. (Brief, p. 5).
The Examiner has provided a discussion of the all of the declarations relied
upon by Appellant in the Brief. (Answer, pp. 3-4).
"Evidence of secondary considerations are but a part of the ‘totality of the
evidence' that is used to reach the ultimate conclusion of obviousness."
Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d 1181, 1187
(Fed. Cir. 1997). The usefulness of this type of evidence lies in the fact that it "serves
as a guard against slipping into hindsight" during the determination of obviousness,
Graham, 383 U.S. at 17-18, in that it may demonstrate that the invention, while it
appears to be obvious upon looking back in time with hindsight, really was not.
Stratoflex Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538-39, 218 USPQ 871, 879 (Fed.
Cir. 1983). To properly consider secondary considerations, we must consider all of
the evidence under the Graham factors together. Id.
1 We note that the image of the declaration filed July 31, 2003, contained in the official electronic
file does not have the signature of the declarant.
2All of the presented declarations have been presented by Daniel P. Kelly who is the sole inventor
of the present application.
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