Appeal No. 2006-2084
Reexamination Control No. 90/006,360
tool holder and vertical insert where the insert is supported on two sides by
tool-supporting surfaces.
For these reasons, the declaration of commercial success is not entitled to
any weight in the obviousness determination.
We have further considered the declaration of Mr. Fountaine dated June 3,
1997, which was submitted during the prosecution of the '400 patent. The
statements regarding commercial success (¶¶ 10-14) are not entitled to any weight
for the reasons stated in connection with the December 31, 2004, declaration.
Patent owner also argues that copying by others is further evidence of
nonobviousness (Br13-14). "[M]ore than the mere fact of copying by an accused
infringer is needed to make that action significant to a determination of the
obviousness issue." Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015,
1028, 226 USPQ 881, 889 (Fed. Cir. 1985) (discussing why copying is not
necessarily evidence of nonobviousness). In addition, patent owner has provided
no showing of "nexus" between the copying arguably shown and the
nonobviousness of the claimed invention. Id. No weight is given to the argument
about copying.
- 55 -
Page: Previous 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Next
Last modified: November 3, 2007