Appeal No. 2006-2084
Reexamination Control No. 90/006,360
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."). We find that sales figures
alone are not evidence of commercial success. There is no way to tell whether the
numbers are big or small in the market for such tools, whether the sales are due to
price, advertising, availability, or other factors unrelated to the merits of the
claimed invention.
Mr. Fountaine's declaration states (¶ 7):
7. The success of the Max Bar Small Shank Vertical Toolholder and
Vertical Insert is due to the advantages offered by the cutting tool as a result
of structure recited in claims 2, 11 and 17-18 of the '400 patent. The tool-
supporting surfaces at the end of the Small Shank Vertical Toolholder
provide improved support to the Vertical Insert, which allows the tool to
perform a variety of cutting functions on an automatic lathe, such as front
turning, back turning, cut off, threading, plunge and turning, and grooving
operations. The 35° cutting insert allows the tool to be used in a fan-type
automatic lathe where several cutting tools may be operating
simultaneously. Because the cutting insert is fully engaged on two sides by
a tool-supporting surface in the tool recess at the end of the tool shank, the
tool insert is not easily dislodged, as occurred with prior art small shank
vertical toolholders such as the toolholder shown in Fig. 1 of the '400 patent.
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