Appeal No. 2006-2074
Application No. 10/158,197
be considered unattractive.4 Not all consumers, of course, chose the
contemporary line, because some consumers believe visible rivets make a
handle more durable (exhibit E, second page), and may prefer a plainer
appearance. Thus, the appellants’ evidence of commercial success tends to
establish obviousness, rather than unobviousness, of the claimed invention.
Fedor argues that consumer testimony shows commercial success of
the contemporary line that is due to the claimed invention (¶ 20). The
consumer testimony includes features of the contemporary line that are not
required by the appellants’ claims, particularly the claims that do not require
the contoured handle. Those features include great heft, fit to large hands,
substantial casting, good sharpness, excellent balance, durability,
comprehensiveness of the set, absence of rivets, strong blades, easy cleanup,
good price, and good quality. Consequently, the consumer testimony does
not indicate that consumers purchased the contemporary set because of the
features recited in the appellants’ claims, i.e., the marking on the butt end,
alone or in combination with the contoured handle.
Fedor argues that copying of the contemporary cutlery set by others is
evidence of unobviousness of the claimed invention (¶¶ 21-24). The
evidence of copying is a Faberware Pro Forged set having handles that are
contoured, riveted, and marked on their butt ends (exhibit F, figures 1-7), a
Tools of the Trade Professional Gourmet Cutlery set having riveted handles
that are marked on their butt ends but lack the appellants’ contour (exhibit
G, figures 1-5), and a Great Indoors set having rivetless handles that are not
4 Both contoured (Fierthaler, figure 1) and rivetless (Seber, figure 1) knife handles were
known in the art at the time of the appellants’ invention.
20
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