Appeal No. 2006-2083
Reexamination Control No. 90/006,352
commercial success, if any." Huang, 100 F.3d at 140, 40 USPQ2d at 1689; Kansas Jack, Inc. v.
Kuhn, 719 F.2d 1144, 1151, 219 USPQ 857, 861 (Fed. Cir. 1983) (determination of obviousness
not erroneous where: "The evidence of commercial success consisted solely of the number of
units sold. There was no evidence of market share, of growth in market share, of replacing
earlier units sold by others or of dollar amounts, and no evidence of a nexus between sales and
the merits of the invention."). The amount of gold grams held in the patentee’s payment system,
even if steadily increasing, does not demonstrate commercial success. It is unknown whether the
numbers are big or small in the market for such electronic currency. It is also not known how
such numbers compare with the extent silver or other commodity certificates were or have been
in use for payments, in market share and variations in market share. Moreover, it would appear
that the proper comparison should be with respect to the total amount of currency in circulation,
whether commodity-based or not, and the patent owner has not provided such data.
Also, it is not certain whether the patentee’s sales numbers are due to price, advertising,
availability, or other factors unrelated to the merits of the claimed invention. A "nexus" is
required between the merits of the claimed invention and the evidence of secondary
considerations in order for the evidence to be given substantial weight in an obviousness
decision. See Stratoflex, 713 F.2d at 1539, 218 USPQ at 879. "Nexus" is a legally and factually
sufficient connection between the objective evidence and the claimed invention, such that the
objective evidence should be considered in the determination of nonobviousness. See Demaco
Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392, 7 USPQ2d 1222, 1226 (Fed.
Cir. 1988). The burden of showing nexus is on the applicant or the patent owner. In that
connection, it is noted that the printout submitted by the patentee for the “goldmoney.com”
website contains the following description:
17
Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: November 3, 2007