Appeal No. 2006-2074
Application No. 10/158,197
also note that the sales in April 2004 (both in terms of dollar share and unit
share) are greater than shown for the “Traditional” knife set in any one of
the months for which data was presented by appellants. Thus, we concur
with appellants that the evidence shows that the “Contemporary” knife set
achieved a measure of commercial success. However, this evidence alone is
not sufficient to overcome the examiner’s prima facie case of obviousness.
In paragraph 12, of the Declaration, Mr. Fedor states “Traditional knives are
substantially similar to the Contemporary knives according to the invention,
except the prior Traditional knives lack the alphanumeric marking (see Fig.
A-3) called for in claims 36 and 50 and the contoured handle (see Fig. A-2
and A-4) called for in claims 48 and 62.” Thus, we do not find that the
evidence differentiates whether the commercial success for the
“Contemporary” knife sets is due to the label on the butt of the handle as
claimed in independent claims 36 and 50 or due to the shape of the handle,
i.e. the evidence does not unequivocally show that the commercial success is
due to the claimed alphanumeric marking.
Turning to the evidence of consumer praise, we similarly do not find
that there is a clear connection between the “Contemporary” knives praised
and the invention claimed in claims 36 and 50. In reviewing the comments
submitted as Exhibits E of the Declaration, we note the positive comments
are directed to both the shape of the handle and the label or marking on the
butt of the knife handle.
1 We note there are several inconsistencies between the statements in, Mr. Fedor’s
declaration and the supporting data. For example paragraph 14 of the declaration states
that there are no data points for the “Traditional” knife sets after August 2002, however
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