Appeal No. 2006-2074
Application No. 10/158,197
Because the appellants’ evidence indicating copying of the appellants’
markings is presumed, rather than proven, evidence of copying and is
limited to three cutlery sets out of all cutlery sets on the market, the weight
to which the evidence is entitled in determining whether the appellants’
claimed invention would have been obvious to one of ordinary skill in the art
is small. Consequently, a balance of that evidence in combination with the
above-discussed weak evidence of commercial success and consumer praise
and strong evidence of prima facie obviousness weighs in favor of a
conclusion of obviousness of the claimed invention. Accordingly, I dissent
from the majority’s decision to reverse the examiner’s rejections.
______________________ ) BOARD OF PATENT
TERRY J. OWENS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
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