Appeal 2007-0554
Reexamination Nos. 90/006,118 & 90/006,254
Patent 6,196,681 B1
facie obviousness is a legal conclusion, not a fact. Facts established
by rebuttal evidence must be evaluated along with the facts on which
the earlier conclusion was reached, not against the conclusion itself.
Considering the Declaration of Phillip M. Johnson, “Vice President of
Research and Development and Quality Assurance of Bacou-Dalloz USA,
Inc., the owner of the above patent” (Decl. 132, p. 1), we find a dearth of
requisite facts to support Appellant’s argument that the full scope of the
claimed subject matter is patentable over the applied prior art. We are
overwhelmed by deficiencies found in the declaration and attached Exhibit
B in support thereof.
Johnson states that Exhibit B demonstrates commercial success which
is said to be “directly attributable to the invention of claims 1-8” (Decl. 132,
para. 3). Exhibit B purports to be “based on records kept in the ordinary
course of business by Bacou-Dalloz USA, Inc. sales of the Genesis safety
eye covering product made and sold by the assignee of the above-identified
patent and corresponding substantially to the invention shown, described and
claimed in claims 1-6 and made by the method of claims 7 and 8 of above
patent” (Decl. 132, para. 2). Exhibit B is submitted to show the commercial
success of “Genesis” in the years 2000-2005 by reporting the number of
“Genesis” units sold, the dollar amount of sales, and “ASP” (undefined) for
each year. While Johnson declares that sales of “Genesis . . . [corresponds]
substantially to the invention shown, described and claimed in claims 1-6”
(Decl. 132, para. 2) and “is directly attributable to the invention of claims 1-
8” (Decl. 132, para. 3), we are unable to determine: (1) how “the Genesis
safety eye covering product” relates to the full scope of the invention
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