Appeal 2006-2165
Application 10/652,958
between the commercial success and the claimed invention. Huang,
100 F.3d at 140, 40 USPQ2d at 1690. Therefore, Appellant has failed to
establish the requisite nexus between the claimed invention (i.e., the plastic
bearing housing containing the antimicrobial agent) and the alleged
commercial success of the claimed invention.
Furthermore, from the evidence provided by Appellant, we cannot
determine how the sales increase compares to the industry as a whole (i.e.,
market share) or from what baseline the sales increase is being measured
against (i.e., growth in market share). Anderson, 21 USPQ2d at 1258.
Appellant has not provided actual sales figures to compare to the plastic
bearing housing industry as a whole. Accordingly, Appellant’s evidence is
insufficient to establish commercial success of the claimed invention.
Regarding Appellant’s evidence of copying of the invention by others
(i.e., Nisley Declaration ¶ 9), we are unable to determine from the evidence
if Appellant’s competitor (Rexnord®) is copying from Appellant or
following the teachings of the prior art indicated above in our discussion of
the Examiner’s § 103(a) rejection. Additionally, Appellant’s evidence fails
to establish that the competitor’s (Rexnord®) plastic bearing housing is
identical to Appellant’s plastic bearing housing. Accordingly, we are
unpersuaded by Appellant’s evidence of copying by others.
Furthermore, the evidence provided by Appellant is simply
insufficient to overcome the strong prima facie case of obviousness
established by the Examiner. Objective evidence of nonobviousness, such as
commercial success and copying by others, will not necessarily overcome a
prima facie case of obviousness based on the teachings of the prior art and
admissions. Leapfrog Enters., Inc. v. Fisher-Price, Inc., No. 06-1402, slip
9
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