Appeal 2007-1615
Application 10/693,442
Moreover, we are not persuaded by Appellant’s contention that
widespread copying of the instant invention is evidence of the present
invention’s non-obviousness. Appellant points to copies of Appellant’s
TrimSpaŽ brand Hoodia gordonii weight control product, “sold as
TrimSmartTM, TrimClubTM and HoodiaSpaTM, [which] copied the original
TrimSpaŽ product, the TrimSpaŽ formula, and used trade marks and trade
dress deceptively similar to the original TrimSpaŽ packaging” (Appeal Br.
29) as evidence of non-obviousness. While we agree that widespread
copying may be an indicator of non-obviousness, copying may be
attributable to other factors as well. See e.g., Cable Electric Products, Inc.
v. Genmark, Inc., 770 F.2d 1015 (Fed. Cir. 1985). In the present case,
Appellant has not established that copying is not attributable to others
capitalizing on Appellant’s advertising campaign and exposure in the market
place, particularly as Appellant’s trademarks and trade dress were copied in
an apparent attempt to pass off the copies as Appellant’s TrimSpaŽ product.
Similarly, Appellant points to “a large number of sources advertising Hoodia
weight loss products for sale . . . includ[ing] . . . www.hoodoba.com,
www.weightlossguide.com, www.h57.com, www.hoodithin.com and
www.phenterlean.com” (Appeal Br. 30). However, Appellant has not
established that these products were not based on disclosures in the prior art,
for example, Van Heerden’s disclosure of P57.
We find that the Examiner has established a prima facie case that the
claimed invention would have been obvious over the cited prior art, which
Appellant has not overcome by argument or evidence. The rejection of
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