Appeal No. 2006-2083
Reexamination Control No. 90/006,352
Goldmoney is based upon 3 patents awarded for its concepts and breakthrough
technology. Managed by former Morgan Stanley and Chase Manhattan
Executives, Goldmoney works closely with partners to ensure reliability and
security for your gold. [Emphasis in original]
Insofar as the commercial system is based on the invention of three different patents, the
patentee has failed to establish the necessary nexus between the alleged commercial success and
the subject matter of claim 1 of the underlying patent in this appeal. The patentee does not
describe the specifics of the payment system provided through the internet website at
goldmoney.com. Nexus cannot be presumed but must be established. Even a mere conclusory
assertion that there is nexus between the merits of the claimed invention and the alleged
commercial success would not be persuasive. See Huang, 100 F.3d at 140, 40 USPQ2d at 1690
("Huang's affidavit contains a conclusory assertion that, in his opinion, the sales of the grips
derive from the increased thickness of the polyurethane layer and the alignment of the pores.
This merely represents the inventor's opinion as to the purchaser's reason for buying the product,
and, alone is insufficient. Instead, the applicant must submit some factual evidence that
demonstrates the nexus between the sales and the claimed invention - for example, an affidavit
from the purchaser explaining that the product was purchased due to the claimed features.").
For the foregoing reasons, the patentee’s arguments based on secondary considerations as
objective indicia of nonobviousness are not persuasive and are insufficient to rebut the prima
facie case of obviousness.
In addition to all of the foregoing, a separate basis exists for sustaining the rejections on
appeal. The patentee’s argument against a conclusion of obviousness is based on the assertion
that the cited prior art provides no teaching for eliminating payment risk by having at least as
much commodity on reserve in secure storage as there are outstanding commodity-based cash.
Even assuming that no prima facie case could have been made by the examiner that that is how
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