Appeal 2007-0274
Application 10/011,629
in 2004. In any event, only 7 of the 37 riflescopes sold by Bushnell include
the Firefly reticle (id.), and no market share data is given for riflescopes with
and without the Firefly reticle. It is not possible, therefore, to determine
from the Lalik declaration how much the claimed invention in the form of
the Firefly reticle contributed toward (or detracted from) the market share
increase achieved by Bushnell from 2002 to 2004.
Our foregoing exposition reveals the probative weakness of
Appellants' nonobviousness evidence based on long-felt need and
commercial success. In addition, this evidence has limited applicability to
the claimed invention because it is more narrow in scope than the broadest
claims on appeal. These broadest claims, such as claim 1, contain no
limitation on the particle size of the photoluminescent material. On the other
hand, the long-felt need and commercial success evidence is based on
Bushnell's Firefly reticle which is described by inventor John W. Cross as
including a photoluminescent material having a particle size less than 30
microns (Cross Declaration 2). Indeed, in an interview for Guns & Ammo
magazine, inventor Cross stated that "[t]he trick [in designing the Firefly
reticle] was in how the material was applied to the reticle and the size and
type of photo-luminescent particles" (Guns & Ammo, 41, i.e., third page in
Exhibit C of the Lalik Declaration). Obviousness evidence is not overridden
by secondary considerations attributable to factors (i.e., particle sizes less
than 30 microns) which are not required by the claims. Riverwood Int'l
Corp. v. Mead Corp., 54 USPQ2d 1763, 1765 (Fed. Cir. 2000).
Finally, it is well established that, although secondary considerations
must be taken into account, they do not necessarily control the obviousness
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