Appeal No. 2006-2074
Application No. 10/158,197
contoured but are marked on their butt ends (exhibit H, figures 1-5).
According to the Fedor declaration, each of these sets was introduced after
the appellants’ contemporary set and, therefore, can be presumed to have
been copied from the appellants (¶¶ 22-24).5
The evidence does not establish copying of the contoured handle.
That handle shape was known in the art as evidenced by Fierthaler
(figure 1) and, out of all the manufacturers of cutlery sets, the appellants
provide evidence of only one set by one manufacturer having a handle with
that contour.
All three of the cutlery sets in the evidence have markings on the butt
ends of their handles that indicate the type of knife, alone or in combination
with the length of the blade. Since the appellants do not provide evidence of
any other cutlery sets having knives with markings on their butt ends, it is
presumed that any other cutlery sets made by the above manufacturers and
all cutlery sets made by other manufacturers do not have such markings.
Thus, the markings appear to be on only a small percentage of the cutlery
sets on the market. The evidence, therefore, is not of widespread copying
but, rather, limited copying. There is no evidence that the lack of markings
on the other cutlery sets is due to the appellants’ patent application rather
than being due to the markings being considered undesirable.
5 There is no evidence of record that the markings on any of the cutlery sets in the
evidence were copied from the appellants.
21
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: November 3, 2007