Appeal No. 2005-1416 Page 8
Application No. 09/771,782
The declaration of July 31, 2004, discusses the copying of necklaces and
losses resulting therefrom. The declaration does not indicate that the
claimed method was in fact copied. The declaration does not specifically indicate that
the copied necklace was manufactured by the claimed method. More importantly, the
declaration does not indicate that there was widespread acceptance and adoption of
the claimed method, much less the unclaimed necklace. See Cable Electric Prods. v.
Genmark, Inc. 770 F.2d 1015, 1028, 226 U.S.P.Q. 881, 889 (Fed. Cir. 1985). ("more
than the mere fact of copying by an accused infringer is needed to make that action
significant to a determination of the obviousness issue."). Thus, Appellant has not
demonstrated that there was widespread acceptance and adoption of the claimed
invention and a nexus between the merits of the claimed method and the copying
discussed in the declaration.
The declaration of October 31, 2002, discusses the licensing of a product to
one company “Innovative Marketing” which sells necklaces. The declaration does not
indicate that the claimed method was in fact licensed. The declaration does not detail
what aspect(s) of the claimed invention was the subject of the licensing agreements.
Thus, a nexus has not been shown for the claimed method and the licensing
discussed in the declaration.
Regarding commercial success, Appellant has failed to prove that the sales
were a direct result of the unique characteristics of the claimed invention. In other
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