Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 from the last words of Paragraph 5 - “See Product Label of XanGo™
2 Juice, attached as Exhibit B1.”
3 Mr. Bean’s Declaration provides no persuasive evidence of any real
4 personal knowledge of the contents of XanGo™ for the relevant time frame
5 for claimed commercial success. For example, no chemical analyses,
6 product batch sheets, manufacturing records, sales records, or the like are
7 provided in support of any specific testimony that the commercially sold
8 XanGo™ product contains the listed ingredients in the time period 2002-
9 2004 accounting for the $130,000,000 in sales. In sum, we do not find
10 paragraph 5 to be persuasive or credible.
11 Second, we are presented with no persuasive evidence that the
12 proffered product label accurately reflects the current content of XanGo™,
13 let alone its historic content over the time period for which commercial
14 success is claimed. We are provided with no testimony to assist in
15 interpreting this product label or information about the relative content of
16 any of the ingredients. The product label standing alone lacks any
17 persuasive evidence (e.g., testimony) linking it to the product and time
18 period of claimed commercial success.
19 For this reason alone, the Appellants’ showing of secondary
20 considerations in terms of commercial success fails.
21 However, we observe that the showing is deficient in additional ways.
22 It is not commensurate in scope with the claimed subject matter. All of the
23 ingredients listed in the Bean Declaration and product label are listed as
24 “fruit” juices. However, the claims, prosecuted by Mr. Bean, recite a second
27
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