Appeal No. 2005-1416 Page 9
Application No. 09/771,782
words, Appellant has not established a nexus between the claimed method of making
a necklace and the alleged commercial success. Sandt Tech. Ltd. v. Resco
Metal and Plastics Corp., 264 F.3d 1344, 1355, 60 USPQ2d 1091, 1098 (Fed. Cir.
2001). (There was no evidence that the better means of attachment improved the
protective capacity of the phones, thereby spurring sales. In other words, nexus was
not proven between this feature, which embodied the difference between the prior art
and claimed invention, and the substantial sales). The declaration do not provide any
factual basis to conclude that the alleged commercial success is due to the claimed
method of making a necklace. The alleged commercial success could be due to other
considerations, such as increased popularity of a sport or a sport franchise unrelated
to the merits of the claimed method or the unclaimed necklace.
Further, Appellant has not established commercial success of the claimed
method, much less the unclaimed necklace. To establish commercial success, there
must be evidence regarding the market sector for the claimed invention and how
much of the market sector is controlled by the claimed invention. However, the
declaration does not identify the market size for the claimed invention or the
unclaimed necklace and how much of the market was controlled by the claimed
invention or the unclaimed necklace. The declarations presented on this record are
devoid of information necessary to establish commercial success.
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