Appeal No. 2006-2074
Application No. 10/158,197
evidence relied upon by the appellants is insufficient for its intended
purpose.
The Fedor declaration provides evidence that the appellants’
contemporary line (the claimed knife set) has sold better than the appellants’
traditional line (tables 1A, 1B, 2A, 2B, 3A and 3B). Fedor states that “[i]t is
my understanding that there is no substantial price or quality difference
between the Traditional and Contemporary lines, nor were the marketing
efforts associated with the introduction of these lines substantially different”
(¶ 12). Fedor does not provide evidence to support that understanding, or set
forth the basis for that understanding. Hence, Fedor’s understanding is
entitled to little weight. Regarding marketing, it is noteworthy that the
appellants’ contemporary set is advertised as having a list price of $418.00
marked down to $179.99 (exhibit E, first page). Thus, consumers are given
the impression that for an affordable $179.99 they are getting a very high
quality set that normally would be within the financial reach of only the
wealthy. There is no evidence of that marketing strategy being applied to
the traditional line, and no evidence that it was not a major reason for
consumers purchasing the set.
Moreover, one of ordinary skill in the art would have expected the
contemporary line, which its modern looking, contoured handle that
provides a comfortable grip and is rivetless, to appeal to more consumers
than the traditional line’s rectangular-shaped handle having rivets that are
perceived as being susceptible to rusting (exhibit E, second page) and may
19
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: November 3, 2007