Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 *includes juice from mangosteen fruit; and
2 *includes other fruit and vegetable juices, such as apple
3 fruit juice, pear fruit juice, grape fruit juice, and cranberry fruit
4 juice.” (Br. p. 28, l. 16 - p. 29, l. 2.)(emphasis added).
5
6 Again, we are not told how Mr. Bean acquired his personal
7 knowledge, or which of the juices in XanGo™ is a “vegetable” juice.
8 We then turn to the sales data. Even though a raw $130,000,000.00 in
9 sales is an impressive figure for a two year period, there is no persuasive
10 evidence tying those sales to the claimed subject matter. Mr. Bean’s
11 Declaration lacks credibility and persuasive evidence of exactly what was
12 sold those two years. The sales data, if the content is as on the label, is also
13 not commensurate in scope with the claimed subject matter.
14 Even were those infirmities overcome, there is already evidence in the
15 record which indicates that the commercial sales may be due to other factors.
16 For example, Yaacob states that the “popularity of the mangosteen is
17 consistently increasing” (Yaacob, 5:23). It is said to be an extremely good
18 tasting juice. Duke calls it “the most delicious of all tropical fruits.” (257:2-
19 3). We are provided with no evidence comparing the growth in sales of
20 XanGo™ to the growth in sales of mangosteen juice in general.
21 The Appellants also urge that XanGo’s marketing efforts are “flat”
22 and “low” and generally less than 0.60% of product sales. (Br. p. 41, l. 1
23 and 4). However, XanGo, the parent company which sells XanGo™, also
24 appears to be a multilevel marketing company. In its evidentiary appendix
25 to the Brief, a sheet entitled “Xango Compensation” seems to indicate there
26 are levels of sales earning commissions of up to 30% - so called “PowerStart
29
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