Appeal 2007-1366
Application 90/005,090
1 merits of the invention. Kansas Jack, Inc. v. Kuhn et al., 219 USPQ 857,
2 861 (Fed. Cir. 1983). Similarly, with respect to long-felt need, Patentee has
3 not proved that there was recognition in the art of a problem that existed for
4 a long period of time without solution. Iron Grip Barbell Co. v. USA Sports,
5 Inc., 392 F.3d 1317, 1325, 73 USPQ2d 1225, 1230 (Fed. Cir. 2004); In re
6 Mixon, 470 F.2d 1374, 1377, 176 USPQ 296, 299 (CCPA 1973). Lastly,
7 while copying of a claimed invention can be evidence of nonobviousness
8 (Panduit Corp. v. Dennison Manufacturing, 227 USPQ at 349 (Fed.Cir.
9 1985)), Patentee has provided only the bare statement “virtually the entire
10 RGP industry uses my invention.” Neefe Declaration, filed January 19,
11 2001, p. 3, ¶ 10. Assuming the truth of this statement, a mere use of the
12 invention alone is not sufficient to prove that the invention was copied. Iron
13 Grip Barbell, 392 F.3d 1317 at 1325, 73 USPQ2d at 1230 (“Not every
14 competing product that arguably falls within the scope of a patent is
15 evidence of copying.”).
16 Patentee’s declaration does not establish clear and convincing
17 evidence of any secondary considerations of non-obviousness.9 Indeed,
18 Patentee’s declaration does not establish secondary considerations by even a
19 preponderance of the evidence.
20 ORDER
21 The decision of the examiner is affirmed.
22
23
24
9 We have not separately listed each of the plethora of arguments raised by
Patentee. However, each has been carefully considered but not persuasive of
patentability and finds response in the analysis above.
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