Appeal No. 2006-2084
Reexamination Control No. 90/006,360
This is merely a conclusory assertion that there is a nexus between the merits
of the tool holder and tool insert and the commercial success, which is not
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."). The tool holders in
Kyocera, Max Bar, ETCO, and Nikcole all have two tool-supporting surfaces, so
commercial success cannot be due to this factor. Max Bar and ETCO teach a 35°
insert, so this angle cannot be responsible for the commercial success. The claims
do not positively recite a vertical tool holder and vertical insert, or the operations
performed by the tool, which might indirectly require a vertical tool, so this aspect
of nexus is missing. In any case, Max Bar, ETCO, and Nikcole teach a vertical
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