Appeal 2007-0274
Application 10/011,629
to vary Firefly's brightness, and though an overly bright reticle may obscure
a target, it's understandable some will prefer illumination that adjusts to
ambient light conditions" (id.).
Under these circumstances, we determine that the claimed invention is
satisfactory for some marketplace needs but is unsatisfactory for others. In
this respect, the Appellants' claimed product is like the prior art products
described in the applied references and in the subject Specification
(Specification 1-2); that is, all these products have drawbacks as well as
advantages relative to one another.
Viewed from this perspective, the claimed invention cannot be
characterized as satisfying a long-felt need not solved by others. Instead,
Appellants' claimed invention is simply a product with predictable
characteristics which resulted from the universal and common sensical
desire to enhance commercial opportunities by improving a product or
process. DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick
Co., 464 F.3d 1356, 1368, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006). That a
version of the claimed product has been well received by users indicates a
successful enhancement of commercial opportunities with techniques known
in the prior art rather than the satisfaction of a long-felt need not solved by
others. It follows that Appellants' long-felt need evidence of
nonobviousness possesses limited probative value.
The Appellants also proffer evidence of nonobviousness in the form
of commercial success which is presented in the Lalik Declaration (5-8).
This evidence includes sales figures for the number of Bushnell Elite rifle-
scopes sold versus the number of Bushnell Elite riflescopes sold having the
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