Appeal No. 2006-2084
Reexamination Control No. 90/006,360
Patent owner proffers the declaration of Mr. William R. Fountaine,
submitted December 31, 2004, as evidence of commercial success. Mr.
Fountaine's declaration states (¶¶ 3-6):
3. Since 1996, Max Bar has manufactured and sold vertical
toolholders having a maximum width of 7 mm or 8 mm (the "Small Shank
Vertical Toolholders") and associated 35° cutting inserts (the "Vertical
Inserts") covered by one or more of claims 2, 11 and 17-18 of the '400
patent.
4. Following introduction of Max Bar's Small Shank Vertical
Toolholder and Vertical Inserts on April 16, 1996 through July 4, 1997, Max
Bar tools sold 406 Small Shank Vertical Toolholders and 3,704 Vertical
Inserts.
5. From February 2000 to October 2004, Max Bar has sold
approximately 2581 Small Shank Vertical Toolholders and approximately
110,000 Vertical Inserts.
6. Because Max Bar changed its computer accounting system in
February 2000, it is difficult for Max Bar to obtain exact figures for sales of
the patented products between July 1997 and February 2000. It is my
recollection that sales during that period were comparable to the sales from
February 2000 to October 2004.
Commercial success is not proved simply by sales figures. "This court has
noted in the past that evidence related solely to the number of units sold provides a
very weak showing of commercial success, if any." Huang, 100 F.3d at 140,
40 USPQ2d at 1689; Kansas Jack, Inc. v. Kuhn, 719 F.2d 1144, 1151,
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