Appeal 2007-0122
Application 10/358,626
Appellant’s showing is short on relevant objective evidence. A
showing of long-felt, but unresolved need requires that the applicant submit
actual evidence of long-felt need, as opposed to argument. In re Kahn, 441
F.3d 977, 990, 78 USPQ2d 1329, 1338-39 (Fed. Cir. 2006). “This is
because ‘‘‘absent a showing of long-felt need or the failure of others, the
mere passage of time without the claimed invention is not evidence of
nonobviousness.”’ Id., (quoting Iron Grip Barbell Co. v. USA Sports, Inc.,
392 F.3d 1317, 1325, 73 USPQ2d 1225, 1230_(Fed.Cir. 2004)). Appellant
has presented no convincing evidence that others in the field tried and failed
to solve the need or were working on the problem for a long period of time.
Appellant further argues that the publication of the invention in the
Appellant’s patent applications caused others to rush in the market (Br. 5-6).
While copying by a competitor can be evidence of non-obviousness, not
every competing product arguably falling within the scope of the claim is
evidence of copying. Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d
1317, 1325, 73 USPQ2d 1225, 1230 (Fed.Cir. 2004). Rather, copying
requires the replication of a specific product. Id. “This may be
demonstrated either through internal documents; direct evidence such as
disassembling a patented prototype, photographing its features, and using the
photograph as a blueprint to build a virtually identical replica; or access to,
and substantial similarity to, the patented product (as opposed to the
patent).” Id. (citations omitted). Such evidence is not of record here.
III. CONCLUSION
We find that a preponderance of the evidence supports the Examiner’s
finding that there was a suggestion in the prior art to provide a hairbrush
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